The Formation Of The Right Zonglun Study

Since the right of formation is indispensable, the overall research for it became important. The present research conceming the right of formation shows that, with reference to its concept, characteristics and system, academics hold different opinions. This article, against academics' main researches, are probing into the existing theories and systems to clear up the concept of the right of formation by way of historical method analyzing the rule and value of its development and evolution, contemporarily combined with comparative study and the hermeneutics method, Thus to abstract its obvious characteristics and remold its system. Besides the introduction, this article consists of three parts: the first is concerning about the concept of right of formation; the second is about the characteristics of the right of formation; the third is discussing the system of right of formation.The first part is concerned with the concept of the right of formation, which mainly explains three major points, namely unilateral expressionism, unilateral behaviorism and compromiseism. Through coherently analyzing the rational idea and the idea of experience, it finds the limitation and logical contradiction of aforesaid three viewpoints and then proposes my own opinion.Along with social vicissitude, the progress of human civiliTation, some emerging rights are categorized as right of formation. However, these rights are incompatible with the traditional definition, for instance, the pre-empt right and the right of occupancy and so on. These rights are indicated by substantial behavior, and unilateral expressionism is understood by legal act. Therefore unilateral expressionism cannot completely and apparently contain the whole types.In view of unilateral behaviorism, although its flaw is less obvious than unilateral expressionism, according to Mr. Dong Ansheng's points, we find that against the legal behavior raised in the behavior classification of, we should firstly classy the expressional behavior and the non-expressional behavior, and then to distinguish the legal act and illegal act in accordance with different lawful standards. The limitation of unilateral behaviorism is also obvious, because it is not indicating the differences between the lawful and illegal. This is not the linguistic game, however, is the flee principle and independently hypostatic strengthAs for the compromiseism, it is only to seek a survival crevice between the unilateral expressionism and the unilateral behaviorism. Based on the above analysis, this article defines the right of formation as that only unilateral legal act can facilitate or will facilitate the change of legal relationship.And partⅡdiscusses the characteristics of the right of formation, criticizes the present points concerned. On this basis, author brings forward its reasonable characteristics. This article believes: 1. the object of the right of formation is legal relationship without any doubt according to the concept of the right of formation. 2. Tt is self-deceiving to declare there are no relative obligations of the right of formation. Although the realization of the right of formation doesn't need the opposing party's help, it still requires their fulfillment of tolerance and bearing. Obviously, such idea is wrong. 3, no deadline-condition or other conditions can be attached to the right. But it does not preclude the case of both parties being in agreement on the deadlines or the conditions. Thus this idea is not scientific.4. And the right of formation cannot be transfered independently in principle. On the type of aforesaid right, the majority can't transfer independently, but take the Independent right of formation for example, the right to choose is allowed to transfer independently, and the right of withdrawal also be inherited in principle. This shows that this idea which alleging all types of the right of formation are not allowed to transfer is not exact yet.5. The right of formation cannot be infringed in principle. Over this point, most of the scholars believe that no matter before, in or after the exercising of the aforesaid right, there may not be chance to be infringed, because once the right to be exercise, the right will come into effect.Unfortunately, those countries inherited the system of continental law however affirm the doctrine of receipt but not of the will. Therefore, for most types of the right of formation, they are not an instant rights, but with the conveying of cartier to inform the opposing party to come into existence. It is possible to be infiinged during the process.The third part discusses the system of the right of formation, focusing on the logical relationship among the right of formation, the right of domination, the right of claim and the right of defense.This article, in view of the power of law, firstly distinguish according to whether it need the help of others, classify the right of self-reliance and the right of dependence, The former includes the right of domination, the right of formation and the right of defense, the latter is the right of defense.And then, in the light of the strong or weak of strength, the author divide it into the positive right and the negative right, the former including the right of domination ,the latter including tieh right of formation and the right of defense. (this distinaion according to the strength.Due to the the right of formation and the right of defense is dependent rights, naturally, they occupy the second level position. Therefore, the right of Change and the right of domination lie at the seme position, the right of defense and the right of formation will be embrased into the right of change.Then ,the dynamic right (refering to changes the legal relationships between the other and other) and the narrow right of formation (referring to changes the legal relationships between himself and the other ) belongs to the right of formation, so, system of rights become very clear.