| From the historical evolution of res, this thesis analyses the intrinsic meanings ofres in different countries at different times, discusses the object theory of rescorporales and the development of duality system, and affirms fully thesignificance of duality system to the civil law at given times. Further more, thethesis expounds in detail the challenges that modern society brings to thetraditional system when new trends are emerging, summarizes all the schemesabout the perfection of property right system, and puts forward some preliminaryassumptions of my own.This thesis is composed of four parts:Part one: historical evolution of res. This part deals with different meanings ofres at different times and analyses specific connotations of res in Roman law,French law and German law and the relationship of res and property inAnglo-American law.The conception of res in Roman law is the broadest, including not only existingobjects but also slaves who do not enjoy free rights. One of the importantcharacteristics of the res in Roman law is that it should be dominated by humanand contain both res corporales and creditor's rights, jus in re aliena, etc. that beseen as res incorporales.The conception of property is widely used in French law. It is divided intomovable property and immovable property. However, res and property do notmean the same thing in French law. The former is the comprehension from thelevel of reality while the later is the understanding from the level of rights. AsRoman law, property in French law is divided into tangible property and intangibleproperty, but they have different meanings compared with property in Roman law.The France Civil Code did not endow creditor's rights with independent legalstatus, so at that time there was no possibility for the emergency of duality propertylegal system.The conception of right in rem causes an unavoidable question about therelationship of ownership and res incorporales. Some scholars in the field of German law argue that if res incorporales is considered as the object of right inrem, the limit of rights and object of rights will be confused and ownership cannotbe distinguished clearly from other property rights. On the basis of this theory,German law confines the definition of res only to res corporales. That is to say,creditor's rights are excluded from coverage of law of right in tem. After that,duality system of right in rem and creditor's rights becomes possible.Anglo-American law adopted widely the conception of property and divided itinto movable and immovable property. Although there are now a great deal ofintangible property in Anglo-American law, the embarrassing situation that existsin civil law system cannot be found.Part two: the object of res corporales—rational choice in the given historicalconditionUnder the influence of conceptional jurisprudence, the object of rights in remonly contained res corporales that can bring benefits to human beings, notincluding res incorporales. On the basis of the definition, German law establishedduality system of rights in rem and creditor's rights, which was universallyadopted by civil codes of other counties. At the age of feudal society whenproductivity was low and economy was under-developed, the choice that theobject of rights in rem was confined to res corporales might be the rationalist one.Part three: the impact of fast development of economy and society on thetraditional civil law systemAlong with the swift development of economy and society, the emergency ofnew things and phenomena heavily struck the duality system. They included: 1)the wide use of natural powers, such as electricity, heat, radio wave, light, etc.2) themassive emergency of intellectual property rights, 3) the valuation of rights inrem,4) the relativity of the differentiation of rights in rem and creditor's rights, 5)the massive emergency of "middle rights" and fictitious Internet property.Part four: the restructuring of property rights systemIt is necessary to perfect property rights system in order to solve thecontradiction between the traditional duality system and the development ofeconomy and society. This thesis brings forward the following four suggestions:Firstly, as the legislation of civil law in China inherited the theories and legal system of civil law system, the law of intangible property is not to replace existingduality system, but to develop and complement the system.Secondly, there are a lot of"middle rights" out of duality system, therefore, as asort of independent rights, intangible property should be endowed withindependent legal status.Thirdly, intangible property should not be considered as an exception in thetraditional civil rights system. It is an abstract of property rights from a higher level.Finally, the rights in the system of intangible property rights are dispersing,independent and individualized, so it is unsuitable to constitute a singe code ofintangible rights to include all of the above rights. Therefore, it is a better option tovalidate the independent legal status of intangible property in civil generalprinciples while enacting intellectual property law, negotiable instruments law,company law, trust law, etc. for the adjustment of all the intangible property rights. |
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