Real Right Behaviour Analysis

The article that deals with the theory of the juristic act of real right, which isbased on the commentary of the real right elementary theory, selects different researchangles of view to inspect the theory. The article is divided into four chapters. The first chapter comments on theelementary theory of the juristic act of real right. The concept of the juristic act of realright was derived from "traditio is a contract" raised by Friedrich Carl von. Savignyand then it was adopted by German Civil Code Statute Book. The concept was thetheory based on Savigny's knowledge on delivery, mancipation and in iure cession etc.in Roman Law and studies of the later generation jurists, which achieved thesignificance and value of the knowledge increments. The juristic act of real right isthe juristic act which put into effects. The common creation requirements only needdeclaration will of putting into effects, and the special creation requirements lie on thespecified terms of the law. The common effective requirements of the juristic act ofreal right are applicable to the requirements of the juristic act: the litigant has suitablestandard behavior ability;the object is possible, definite and legal;and the declarationwill is integrated. Its special effective requirements need registration declaration forthe real property, and delivery declaration for the movable property. As the juristic actof real right is disposition act, so disposition right should become one of the effectiverequirements. Independence, abstraction and formality are the characteristics of thejuristic act of real right. The independence makes sure that the real laws effectivenesshas independent meaning,the abstraction excludes the effectiveness of the intentionact from the effective requirements of the juristic act of real right, and the formalityconfirms the real rights transfer as a objective meaning. Three characteristicsaccurately describe the specialty of the juristic act of real right. From the secondchapter to the forth one, the article inspected the juristic act of real right with differentangles of view as civil law system, function & significance, and transplantation of law.In the chapter two, from the study of the civil law system, the article found out thesystem importance of the juristic act of real right. At the three important times ofGerman Pandectarum system structure, the juristic act of real right formed and wellestablished. In the process of division of real right and creditor's right, the form of thejuristic act theory, and the establishment of the abstraction system, the juristic act ofreal right and its characteristics became complete. At the same time, the juristic act ofreal right took the significant influence again to the German civil law system, andbecame the essence of the system. The juristic act of real right revealed the strictstructure and logical organic characteristic of the system, which had become themodel symbol of the German legal system. The third chapter emphasizes the threefunctions of the juristic act of real right and its abstraction: protecting transactionsecurity, explaining concrete system, and extending the applicable scope of the system.In the last chapter of the article, the author concentrates his idea on using the theory ofthe juristic act of real right in China. As our inherent legal culture is lack of privatelaw factors, so the transplantation of law should be done in constitution of the civilcode. Though our current legal norm is similar with German, the theory of the juristicact of the real right has the close connection with German civil law system, so it'sreally not easy to transplant the specific system, and some conditions restrict us fromstringing along withal the theory from German. What's more, our research on thetheory of the juristic act of the real right is insufficient, and the related legalenvironment is unable to agree with it, therefore, the article made a point that pick theprudent manner in the future civil legislation to the juristic act of the real right, adoptthe soft legislation which means pay more attention to the practicability of the law andleave the research on the theory of the juristic act of the real right to the legal scienceresearch to discuss continuously.Looking from the methodology, the article mainly using the concept analysis, thehistorical analysis and the comparison analysis method, not only inspected the theoryof the juristic act of the real right itself from the inside and outside, but also ponderedand appraised in the insufficiency of our fundamental research, moreover paidattention to the reality of Chinese legislation simultaneously.