Claim Of Infringement Of The Right Instead Of The Consideration Of The Property Rights Claims

In the text, author analyzed the rationality of the establishment of jus in rein claims system around the focus of the academic dispute about the two protection modes ofjus in rein. The full text is formed of four parts: The part one with the method of history deduce, comb and investigate the history origin of the jus in rein claims. First all author summarize the real action of the Roman Law, consider the complete real protection action system of the Roman Law gestate the sprout of the real claims system. Secondly according to jus in rein claims system of origin and development track, introduced the formal establishment and development of the jus in rem claims system, believe that our country current civil law norms channel the jus in rein claims into the tort responsibility system cause the methods of jus in rein protection of our country can't link with the jus in rein claims system and tort claims system of the traditional civil law.The part two talked over the foundation of the jus in rem claims from the static state angle. Firstly think that traditional civil law according to violate real right behavior of dissimilarity appearance, strictly district the concepts of encumbrance and damage, then formed two protection system about the protection of the jus in rem. Secondly, author based on think the direct domination derive fi'om the preferred effects, based on the absoluteness derived the jus in rem claims, believe that the jus in rein claims is the essence characteristic ofjus in rem and the valid means to absolutely protect the jus in rem.The part three based on the essence of the debts and the civil responsibility and relation, to carry on examine with thinking and criticize, consider that rem claims should be bring into the civil responsibility system. Firstly, according to the observation, believe that if the inherent unity were limited strictly with the economical claims, the non-economical claims relations could not be adjusted effectively. Secondly, consider that the Civil Responsibility Result Theory bring all the salvage claims into the civil responsibility system is not scientific absolutely, the tort responsibility is not apart from the debts at completely. Through the argument, reject the standpoint of that all the torts will lead to the civil responsibilities and the Tort Law inevitably independence to a volume.art four make a synopsis analysis of the defects of tort claims mode. Firstly, convert the rein claims into the tort responsibilities will cause initiative effect of the rem claims can not be realized. Secondly, convert the rein claims into the tort responsibilities disadvantageous in the harmonization of the Tort Law, because of the usage of the non-culpa responsibility principle, don't have the proper functions of the culpa responsibility principal of the traditional civil law, in addition, completely contrary to the basic way of thialdng of making sure of the tort responsibility, adopt dual standard when assure whether the in possession in bad faith cause the tort. Lastly, converting the possession restitutio claims is not reasonable, because the rights and responsibilities of the party concerned of the possession restituio claims relation are not processed with the provisions of tort, unjustified benefit, negotiorum gestio, but "tort claims theory" analyze the possession restitutio claims in the frame of culpa tort and non-culpa tort, can not give the reasonable explanation on the legal principal. In the meantime convert all of the possession restitutio claims will make traditional civil law fragmented and disorganized.