Property Rights Legalism Abolition Theory

The doctrine of numerus, also called the principle of numerus, has been adopted by thecountries of the mainland law system since the law of Rome all along. In fact, the countries ofthe Britain and America law system have also followed it silently. On the other hand, however,the notion of numerus clausus has been questioned since it appeared and argued from time totime about its existence or discard. Especially in recent years, the criticism is increasingly stricter.Questioning but following and following but criticizing are a sery of interesting phenomena. Butwhat has hidden behind them? So this paper is to probe the truth and present numerus clausus'original appearance, then decide whether it should exist continually or should be discarded. The whole essay contains three parts: preface, text and conclusion. Among them, the text isdivided into four chapters, including: Chapter 1: The history and definition of numerus clausus. In this part, the history ofnumerus clausus is first traced back to from the Roman law to the legislation of the countries ofthe mainland law system. The countries of the Britain and America law system are alsoinvestigated. It is found that the main opinions and the legislation have still insisted on theprinciple, even the non-codificational countries like Britain and America have also abided byquietly, despite continuous controversies about it. Anyway, what is its implication? What is thebasis of its existence? Why has it been censured ? Could it continue existing? Existence ordiscard? Next, the implication of numerus clausus is analysised. As a legal principle, numerusclausus has been persisted in for a long time, but its implication can't have been agreed on eachother by the scholars. The paper evaluates the scholars' standpoints one by one, and then thinksthe categories of the real rights must be stipulated by law, and not be established freely by theinterested party.Chapter 2: The theoretical basis and value of numerus clausus. This party mainly gives thereasons why numerus clausus hasn't been discarded. In other words, does numerus clausus haveto exist? If we think so, what is its basis of existence? In the first place, the paper begins with theorigin of numerus clausus. From it we can find that real rights and creditor's rights rely on eachother, and together constitute property rights as two pillars. As the object, premise and basis, realrights have such characters as direct domination, exclusion and being protected etc. Just on theground of these features, people treat real rights very cautiously not to establish its kinds freely.Everyone has to take part in the trade because of the division of the social labor. Real rights areeither beginning or ending, and either purpose or method. In order to the safety, speed and lesscosts of the trade, showing publicly is thought of as the best method. But the premise is thedefinition of the object. How to definite if the interested party can establish the category freely?So we have to choose numerus clausus. Otherwise we can't show publicly. Second, adoptingvaluable analytic ways, the paper reveals that numerus clausus has some values such as order,efficiency, equality, human rights, freedom, and so on according to our reality, which makesnumerus clausus more vivid and concrete. Therefore, numerus clausus is objective notsubjective or being chosen by policy. Most of all kinds of resons in academic circles can not beconvinced sufficient.Chapter 3: The criticism of numerus clausus and the reaction to the criticism. Like manyother things, although the numerus clausus is objective, the scholars also have questioned andcriticized it, especially in Japan, Taiwan, including the mainland of China. The different ideasdivide into two schools, one is discard school, the other is alleviation. In fact, both of them arethe deanial of numerus clausus. The main reasons are conservation and rigidity, the distinction ofreal rights and creditor's rights is becoming more and more vague, more trade costs and themodernization of showing publicly, and so on. Their methods of solution are as follow:discarding numerus clausus absolutely;making the conventional law the basis of real rights;explain numerus clausus widely, etc. Actually, the first theory exaggerates its shortage. Thesecond only looks at its appearance not to study the essence. Its characteristics haven't changed.The third one that bases on the premise "exchanging tortuously usually by creditor's rights" isdoubtful. The fourth is a false proposition. "Accepting the conventional law" and "explainingnumerus clausus widely" will break through law truthfully, which lead to illegation and hardshowing publicly. As a result, all of the reasons and methods can't defeat down numerus clausus.Chapter 4: The suggestion about the legislation of the real rights law. After the analysis ofthe theory and demonstration, the elaborations from positive and negative, especially the refutingto the critical opinions, we put our eyes on the present hot legislation about real rights in this part.This paper naturally shows that we should stick to numerus clausus without shaking, and set upthe system of real rights as soon as possible. At the same time, it limits the "law" of numerusclausus and points out the consequence while violating the principle. At last, the article assessesand analyzes three sketches about the real rights law, then puts forward the suggestions forlegislation as a reference.