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On The Premises Consistent With The Principle

Posted on:2009-08-31Degree:MasterType:Thesis
Country:ChinaCandidate:R B CengFull Text:PDF
GTID:2206360272484145Subject:Civil and Commercial Law
Abstract/Summary:PDF Full Text Request
As for the disposition of rights on estate, there is an overriding principle having been followed that conforming subject of rights on building and that of land, which is also known as "land transferred accompanies the building transferred, "and "building transferred accompanies the land"model.As the development of market economy, on the one hand, laws like "Property Law"affirmed this principle;on the other hand, due to the complexity of situation in practice there have already been some exceptions of the principle.Thus this dissertation begins with the comparison of the principle in China with that of other main civil law countries, discussing the social background in China, with which as the basis, to analyze the true meaning of the principle.What is more, economic foundation was also analyzed, and fin ally offered some legislative proposals to better principle.The dissertation contains five parts excluding the preface and the conclusion:The first part is to explain the concept of the principle and illustrate development, analyzing the relationship between this principle and the absolute ownership of Roman law in major civil law countries. And the author proceeds comparative research on the principle of conforming subject of rights of building and that of land.Furthermore, the author discusses the propose of this principle in the aspects of economics, political science, and legal respectively.The second part refers to several sub-views about the principle, which are known as 'building adhere to land', 'building bundled with land' and 'building and land as an integration'. The last one is proven to be the most suitable for China's current national conditions and the most effective way to protect the rights and interests of the third-party in transaction, thus itmaintain good order while trade.The third part refers to the principle of conforming subject of right on building and that of land, as a compulsory norms, is binding for civil subjects who emphasized on individual autonomy.Which means it should be superior to the individual autonomy if there stands conflicts between the two.All could help to establish the authoritative image of law itself.The fourth part refers to the exceptions of the principle of conforming subject of right on building and that of land. Laws (like 'property law') confirmed the principle, but the exceptions have already existed in practice. And the author illustrates the exception which occurs during the realization of mortgage about buildings on allocated land, and the ownership of underground garage.The fifth Part presents the different point of views of scholars on this principle, associated with the situations which the principle applies to, also points out the disadvantage of it. Thus, the author here tried to offer some legislative proposals to improve the principle. Since the traditional principle focused on the protecting ownership of land, and now it maybe converted into protecting the use right as well, to fully introduce individual autonomy, and the most important is, facing the possibility of exceptions existing.
Keywords/Search Tags:principle of conforming subject of right on building and that of land, land transferred accompanies the building transferred, building transferred accompanies the land
PDF Full Text Request
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