On The Juristic Act Without Reason Of Sex

Since the theory of the juristic act of real right was created by Friedrich Carlvon Savigny, the representative of the German history law school of thought, andadopted by German civil code, the theory has caused huge echoes in the lawcircles of the world. While it is supported by the epigone due to its highabstraction and complete logic, it is also confronted with the heated criticismsfrom some of jurists who point out that the theory is too abstract and abstruse.This kind of different attitude has an obvious reflection in the legislation in allcountries after the establishment of German civil law: some lawmakers hold thepositive opinion, some hold the negative opinions, some others hold the positiveopinion with a certain premise.The advantages and disadvantages of differentlegislations have been compared in the long-term theory research in differentcountries.With the establishment of the real right of integrity, the theory of juristic actof real right that has been neglected for a long time has been a hot issue ofresearch with many problems to be clarified. It should be pointed out particularlythat many scholars hold different opinions on the problem whether the juristic actof the real right "has its reason" or not. The affirmative believes that abstractiontheory is a great progress for the theory of civil law because it is beneficial to theprotection of barter and the application of law; The negate thinks that this theorynot only disobeys the principle of justice, the climax principle of civil law, butalso makes the law system more complex and abstract, being the barrier to theapplication of law. With such a heated discussion, it is necessary for us toconsider the necessity of the existence of the reasoning theory.This essay consists of three parts. The first part is the brief introduction ofabstraction of the theory of juristic act of real right. The concept of the juristic actof the real right and abstraction has been analyzed to make clear the object of ourdisagreement. Whether we are affirmative or negative for abstraction theory, wedo not have an explicit definition of the meaning of abstraction, taking it forgranted that abstraction means the juristic act of the real right is valid regardlessof the validness of obligatory rights. Thus follows a result that we put its "side effect" to an extreme when we criticize abstraction, while we absolutely affirm itsadvantages when we support it.In the second part the author has a detailed analysis of the effect of thetheory. The real right act has been put into the theory frames of law to study thedefect of real right act. It is well-known that abstraction principle can function asa protection to barter only when property right still has its potency whileobligatory right is invalid. Therefore, when property right does not exist alongwith obligatory right, abstraction has no need to go on.Through analysis with examples, we find that real right act usually go withobligatory right in the same way no matter what reason leads to its fate. Actually,it is difficult for abstraction to serve as necessity for life.In the third part, abstraction principle of real right has been proved to beunnecessary from the perspective of legal values. On the condition that thepotency of abstraction on the protection of trade safety is discussed with thedefect of real right act being considered, we can easily come to a conclusion thatthe potency of property right behavior can hardly function due to the impotencyor cancellation of obligatory right. Even though we admit that abstraction canbenefit the protection of trade safety, we can replace it with an easily-acceptedunmovable property register system and innocent purchase system on movableproperty. Moreover, the latter has somehow a wider application compared withabstraction. The so-called advantages of abstraction theory such as a better use oflaws, a better implement of the party's wish and so on can not hold water.According to abstraction theory, the process of trade is divided into oneobligatory right and two real right acts and they overlap with the innocentpurchase system and unmovable property register system. In this sense, it makesa case more complicated, needless to say the application of a law. Abstractionprinciple runs counter to logic when it gets rid of the reason of property right.Since the presupposition can not hold water, how can we say the seller's intentionhas been followed? In fact, as long as different potency belongs to differentparties, and problems existing in the course of the implement of contract do notaffect the potency of the contract, the intention of party has been respected to alarge extent. The goal that abstraction theory has been pursuing can finally be achieved through proper reform and consummation on the extant system.Abstraction theory is relatively more abstract and far from the reality. Comparedwith the trend of legislation in modern society which is in pursuit of thereasonable system and applicable law, abstraction theory lies in the pursuit of thecompleteness of the theory system. Therefore, it is unnecessary in the civil law tointroduce the abstract and disputable abstraction theory.