| Property Right Law (abbreviated:PRL) regulates the relations of property's ownership and use. It is very important to the socialism market economy. The principles of PRL are the theoretical foundation of PRL's legislation. PRL can't be legislated scientifically if they are not studied thoroughly. However,up to now,no jurist has studied them totally. Therefore,it is in urgent need to study them totally and systematically. This dissertation,on the Principle of Contemporary PRL and the Choice of China's Legislation,is studied under the background of the above-mentioned.This dissertation studies the legislation of every principle of PRL detailed in various countries,so a total comprehension is acquired. Their advantages and disadvantages being weighed,reference cases are offered not only for our nation's legislation of PRL but also for interpretation and use of them in judicial practice after PRL is legislated.It is put forward that the same protection to varied ownership's property should be given as the publicly owned property. In other words,the conservative idea that private property right is equal to private ownership system should be smashed,and private property right should be protected. The social political principles of PRL are established on the base of that:basic human rights,social obligation sticking to property right (especially to ownership),making the most use of property. In the meantime,modern market economy is in order and its safety of transaction,especially moving safety,need be protected by law,which it is one of the essential conditions that maintain market transaction successive and developing. So,on the foundation of the absoluteness of property Right and at the aim of social justice,efficiency and safety of transaction,the PRL's construction principles can be confirmed:property right set only by law,independence of act of property rights,public notice,public belief.PRL should aim at the basic human rights,and ensure man living and developing material conditions. The man of property right must respect social public and third party's benefit although his right is absolute. In comparison,the principle of basic human rights and property right's character of absoluteness should be emphasized when our national PRL is legislated. National taking of property and requisition for use should be limited so that private property right can be protected to the full.The problem of making the most use of property can be read from the scholars' theses occasionally,which were studied on what PRL's center is. Scholars thought that modem PRL is shifting from emphasis on property's ownership to that on property's use,so it should be paid great attention to in the legislation of PRL. But in this dissertation it is regarded as one of the social political principles of PRL andstudied more detailed. It was absorbed into many nations' PRL and plays an active role in the judicial practice,developing into one of the principles of PRL gradually. It should be stipulated clearly and the system of our nation's PRL should be constructed by centering on property's use.About the problem that property rights are set only by law and customs are recognized as law,it is put forward that property-rights-set-only-by-law should be stipulated to maintain PRL steady because existing customs are sorted in the time of the PRL's legislation and the PRL is according with the demand of social economy. Customs-recognized-as-law should be written in General Principles and Property Rights of Civil Code when it is compiled because social economy will develop more greatly in that time and new customs must come into being. From that both steadiness in a certain time after the legislation of PRL and its relaxation are given consideration to,and PRL will develop with the times.About act of property right,non-cause does not accord with social justice,modified much in German and our province of Taiwan,and it is almost the same as public belief if they are studied from the results of law. So,non-cause should not be adopted while... |
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