| It has been over 100 years since "the dualistic framework of real right-personal right"(hereinafter referred to as "the dualistic framework") was regarded as the paradigm of system of property in civil law family. During this period practical experience has been striking the dualistic framework constantly and some theoretical queries are gradually put forward. To nowadays, these queries have converged into one tide of reflections, which put the dualistic framework in a crisis involuntarily. Seeking the origin and background, reviewing various kinds of introspection and examining the rationality of the dualistic framework has become an urgent theoretical problem in the science of civil law as well as the need of responding the practical experience. However, relevant studies in our country lag far behind. This dissertation is trying to do some possible studies to this problem and it is divided into three parties, about 50000 words; the structure of it is as follows:Part I , probe into the source of the dualistic framework. This section regards ownership as the emphasis point and deals with historical origin of the dualistic framework and its background from the angle of a structure theory. Such misunderstandings as "right was treated as center in Roman law" and "the dualistic framework originated from 'actions in personam' and 'actions in rem"' are clarified, and then such basic frame as "Roman had no 'right thinking'" and "right was just the reflection of actions" are sketched out. Instead of an abstract, unified system of property right, Roman law covered all property with the ideal of ownership which means "I own something". Jus in re aliena and personal right, classified as res incorpales, were regarded as objects of ownership. In a word, although the forming orbit of concrete property right in civil law family may be found out in the eyes of right, of which the structure can't be found out. There existed no dualistic framework in Roman law, which only offered essential materials for shaping of dualistic framework. In the course of investigating the history from Middle Ages to the French Civil Code, how the idea of right came into being is disclosed and the idea of right was initially systematized in the French Civil Code, in which "right thinking" wascombined with the idea of "great ownership" stemming from Roman law. In addition, the standard of rem was replaced by the standard of right in civil law. However, proprietary right still covered all property in the French Civil Code, just as in Roman law. Jus in re aliena and personal right were not independence of proprietary right. Systematizing "right thinking" should be the greatest contribution of the French Civil Code to system in later age. At the time of the constitution of the German Civil Code, the special background of "the Second Empire", the tremendous influence of the philosophical thoughts of such philosophers as Kant and Hegel on such jurists as Savigny and Windsheid, Pandectarum formed under the reign of natural law of ratio and the proposition of the juristic act of real right, finally prepared all conditions for forming of the dualistic framework. The promulgation of the German Civil Code gave the dualistic framework with legal validity.Part II, introspection of the current situation. As a theory of science of law, the dualistic framework suffered queries of some scholars at the beginning of establishing. In the realistic society, such problems as "real right of personal right" and "personal right of real right", furthermore, severely challenge the rationality of the dualistic framework itself, which causes introspection of scholars of various countries. The French scholar Planiol proposed "theory of the doctrine of personality", intending to incorporate real right into personal right and then to clear up the dualistic framework. Saleilles proposed "theory of objectivism", intending to incorporate personal right into real right and then to clear up the dualistic framework too. Ginossar absorbs the different theory of "absolute right" and "relative right" in line with the idea of " great ownership" from Roman law, reforms the whole proprietary system, floods the dualistic framework in his "French romantic passion". By contrast, German scholars, take Knieper for example, endeavourer to justify the dualistic framework in order to prove its adaptability. Relying upon his peculiar background of Germany, Knieper describes the interactive relation between changes of society and the dualistic framework within the whole German civil law frame of reference. Finally, he is proud to declare: Changes of the society have been already in the expectation of the dualistic framework; so long as itsinside is adjusted a little, it would adapt to the development of society. However, Japanese scholars hold the wait-and-see attitude to the dualistic framework. Having investigated the relation between real fight and personal right from the angle of sociology. WAGASHIMA, WOWOTAXOZO pointed out that personal right had been prior to real right since modern times. MAMOTONIEWO probed into the relation between real right and personal right with the method of economic analysis. HIGUCHINO observed the dualistic framework from the point of view of Anglo-American Law, etc.. Nevertheless, they do not draw any conclusion, just "looking forward to new information". Similar to Japanese scholars, Taiwan scholars, for instance, Su Yong-qin, Wang Wen-yu, Xie Zhe-heng, perspect the dualistic framework from various kinds of angles, but are, too, busy observing and cautious in conclusion, make some directive predictions occasionally. In China's mainland, few scholars pay attention to this problem, yet those discussions, if any, are clear-cut, such as Yin Tian's standing fast at the tradition, Meng Qin-guo's improvement scheme, Mei Xia-ying's "Anglo-Americanization" advice.Part III, conclusion, but a "conclusion of non-conclusion". Because this section, as retrospect, summary of this text and some superficial reflections of the author, is a conclusion of the dissertation. But to this theme the dualistic framework, various kinds of observations are going on, discussions are in the air, the final conclusion is not reached. This dissertation is far from the conclusion. In this section, Zeng Shi-xiong's "doctrine of resource standard" and Wang Yong's "theory of analysis law science" are mentioned, which should be beneficial to introspect the dualistic framework. In any case, actual life is the final standard of evaluating all theories. It seems no disputable that the idea of "absolute proprietary right" embodied in the dualistic framework does not adapt to actual life any more, from which a variety of improvement schemes, "Anglo-Americanization" advice may be. To our attention, introspections of the dualistic framework involves the basic thinking pattern, method of law science, standard of judgment and a series of basic conceptions, such as legal relation, right and duty, object, and so on. These implicit that the dualistic framework is too deeply rooted in the whole theory of private law ofcivil law family to abstract to observe and introspect independently. The introspection tide of the dualistic framework is essentially the embodiment of the theory crisis of the whole civil law science. However, "one scientific theory, once becomes the paradigm, will not be invalid until another suitable one replace it", which is equally suitable to describe the dualistic framework. According to these discussions of its historical origin and reflections, the dissertation makes a fundamental prejudice: the dualistic framework is still a leading paradigm, but has been in the crisis; after the competitive theories pre-paradigm period, the time of clear thinking of civil theories of the civil law family comes. |
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