On Private Property, Civil Law Framework

The second session of the National People's Congress has adopted the fourth constitutional amendment and brought " it is forbidden to invade the legal private possession of the citizen" into it definitely for the first time. It is a great achievement in constitutional reformation and renovation of the constitutional idea, embodying the concept of taking man as base.Property rights are a fundamental right of citizen. It is the demand of perfecting socialist market economy system, sticking to and perfecting the basic economy system in our country and helping people to develop completely. At the same time, property rights form a cornerstone of constitutionalism, a shield of human rights and an effective means of power control. They build close links with constitutional order and social effectiveness, compose the foundation of humans' freedom and dignity as well as the impetus of humans' existence and development. Hence, they are inseparable from breeding the material, spiritual and political civilization.Theoretically, the guarantee of a certain right should be implemented by the whole law system. Protecting property rights can not just depend on a simple constitutional clause either, which also demands a scientific and intact law system composed by kinds of laws to protect its enforcement. Because of the limitation of the feature of language and status in the whole law system, constitution can not speculate the property rights in very concrete and effective entity norm. We can say the constitutional principal stipulations can not replace the issuance and implementation of the ordinary laws. Because of the difference between the adjustment object and method, every ordinary law has their own task and emphasis. And civil law, as the fundamental law of the market economy, must be the best one to specify property rights, by analyzing the natures and adjustment object and the traditional contents it include in history.In fact, from the beginning of the legislation of our country, civil law has been paying more attention on the property rights, which can be proved from the structural style of General Rules of Civil Law. In the course of formulation of the coming civilcode, how to build up the property law system is still one of the focuses disputed by experts. Because of the influence of the civil law theories, the present property rights frame of china has been set up on taking Real Rights and Credit as a core, but the frame itself has the absence of structural flaws. Under the condition of emerging of new properties in an endless stream and the rapid rising of intangible property, it lacks the scientific legislative regulation on property rights relationship. For example, when analyzing and setting up a new property rights, scholars always sink in the mine of inertial thinking that it is a Real Rights or Credit, Its reason is primarily the absence of the status of property rights in the traditional property frame. We can know that the scope of modern property far goes beyond the Real Rights and Credit very much, by comparing Real Rights with Property Rights generally. Property rights link closely with the economy shifting with productivity and association. As the norm of social relationships, which should varies with the changing of economic condition. From this reason, we know that the property rights system should be set up on the new concept of property rights as a task of top priority.By furthering the analysis of the property rights system in traditional legislation and theories and referring to the advanced legislative practices, a conclusion that the general rules of property rights can rearrange the property rights effectively has been drawn. At the same time, the fact that property rights have been written into the constitution has changed the legislative constitutional basis and made clear the concept levels demanded by the code system nature of concept for the coming civil code, to make us realize the possibility of setting up the civil private property rights system on the basis of Property Right and strengthen the confidence and resolution to introduce it into the coming civil code. Because this kind of intermediary legislative framework can not merely reflect the spirit of amending constitution, can also set apart property rights from personal rights, and seek a reasonable balance between the command of civil code and specialization of legislation.