Study On Differentiation Between Dominium And Ius In Re Aliena

In this paper, using the methods of historical jurisprudence, historical philology and comparative jurisprudence, the author studies on the development of the distinction between dominium and ius in re aliena, sorts out the relevant literature, and has a discussion on developing law of dominium and ius in re aliena. the paper divides this historical process into four stages:The first stage is original. It has its own historical basis:highly developed commodity economy; three periods such as the king age, the public age and the emperor age; legacy of theory of natural law from ancient Greek and legal ideologyin in ancient Rome. So with "action in rem", as its thought Roman law made a distinction and interpretation between both of them, which had great influences.The second stage is the stage of development. In middle ages, on the basis of civil society, city law, and revival of roman law, the term of ius in re aliena budded and the term of dominium had the further development, which contributed a lot to the correct understanding of dominium, appearing of ius in re aliena, and real right system in the latter society.The third stage is the completing stage. Early in the modern age, medieval feudal economy is gradually replaced by capitalist economy, the outbreak of the bourgeois revolution, the establishment of the capitalist government, and the development of humanist jurisprudence laid the historical foundation for completing both real rights. On the basis, Apel, Donellus, and Hugo Grotius expored this issues, which laid foundation for later Pandektenists'developing both concepts.The fourth stage is the stage of maturity. Since the mid-modern, capitalist economy has gone through free competition to monopoly capitalism; capitalist politics has gone through establishment, consolidation to the final oligarchy; western jurisprudence has gone through liberalism to socialism. On the basis, the permanent, absolute and private nature of the dominium began to be limited, and the absolute nature of ius in re aliena began to be strenghthen. Above all, the evolution of dominium and ius in re aliena is not only a subjective creation of Jurists, but also is the historical and inevitable results. We must explore its law of development to serve the construction of real right law.