On The Civil Rights Conflict Of Priority And Its Regulations

Rights is the representation and realization of the benefit of people in the sense of law. Behind the conflict of right, the conflict of benefit between rights entities hides. The obligation of law is, through certain procedures, defining the boundary between rights, harmonizing the relation among rights, solving conflicts and, by this means, realizing rights. In this context, the civil priority system becomes an important subject which we must pay attention to study.The priority system is an important and complex system in civil and commercial law. The Civil Code in Continental Law System has systemic and particular definition. In contrast, the civil priority system in our country, which has scattered system, incomplete items, and rule of law with flaw, is far from perfect. This is very disadvantageous in the sense of a law in use. This paper hence attempt to begin with the basic theory of civil priority, study the flaws of the definition of civil priority system in the entity law in our country, analyze the reason, the principle of restricting and the method of restricting of conflict in civil priority, and study deep into the focus of the problems in judicature affair, expecting this may instruct judicature practice.The first is overview of civil priority. Though the analysis of various theory of the definition of civil priority in the theory research field of civil law in our country, basing on the need of protection of civil priority in judicature affair, the writer think that civil priority is that one civil right has privilege over other civil rights according to law in the condition of occurrence of conflict between civil rights with different character. Civil priority, as an ontic right over object, belongs to property rights, and has the character of object rights, especially the assuring object rights. Civil priority has specific function and value: it promotes the social policy of preferentially protecting the right of the puny community;maintain the public right in the society;advance social an commercial benefit;maintain the perspective of justice and right.The second part is comparing study in the category and order of civil priority. Throughcomparison and analysis of the definition of civil priority system in the law of France and Japan with it in the law currently in use in our country, the writer thinks that accompany with the establishing and completing of the market economy system, the legislation of civil rights experience the process of establishing from ground, and growing into variety, and is in a process of enriching and completing. But, comparing with France, Japan and other western countries, there are still a lot of illogicalities. The most important ones are: lacking of general regulating of civil rights;corresponding entries are roughly set which is bad for practicing;the intensity of protecting the rights of puny community and charges for public benefit is not enough. The flaw in the civil priority system reflects the lagging of current legislation, which makes the social relationship that should be specially protected exposed outside the protection of law, therefore forms the flaw of law. According to the theory of definition of object right, this flaw should be completed.The third part is about conflicts the civil priority facing with and the regulating of them. This is also the focus of this paper. In the field of civil law, the conflict of rights often occurs. When multiple civil priorities are on the same property, or when civil priority conflicts with other assuring object rights, the conflict of rights is sure to happen. The main representations of right conflicts civil priority facing with are: the conflict among the effectiveness of different first-obtain privileges;the conflict among the effectiveness of different first-purchase privileges. Harmonizing the conflicts civil priority facing with should flow the principle of protecting the weak ones and, at the same time, considering the justice of and efficiency and harmonizing the public benefit and the individual benefit. To regulate the conflicts of civil priority, the order of civil rights must first be defined in legislation. Writer thinks that the order of civil rights contains the order of privilege over estate, the the order of privilege over fluid property, the order of rights basing on registration and the order of rights not basing on registration. And also, the writer advances the six principles that should be followed when defining the order of civil rights, and further, specifies the methods of regulating different kinds of conflict on civil priority.The forth part is the study on some important problems in judicature practice. Fromperspective of applications law, the writer performs deep study on the common problems in the protecting the civil priority in the judicature practice, expatiates the appliance of law of protection of different civil priority, especially the application of corresponding rules on priority protection in the judicature description of the supreme count, the restriction and perishing of civil priority, and advances the perspective of myself, which has some value in the sense of instructing judicature practice.