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Rationality And Limitations On The Principle Of Numerus

Posted on:2008-04-15Degree:MasterType:Thesis
Country:ChinaCandidate:X Y WangFull Text:PDF
GTID:2206360272983791Subject:Civil and Commercial Law
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The Principle of Legality of Right in Rem,as both one of the primary pillars of Real Rights Law infrastructure and one of the most distinctive principles in Real Right Law,has been in the very center of criticism from the 20th century.From its conception to materialization,Real Rights Law of PRC went through 7 rounds of congressional debate during the last 14 years;the humongous workload of preliminary investigation,suggestion-seeking,mass-opinion-taking,debating and revising involved in the legislation is unprecedented in legislative history of PRC.The controversy concerning Principle of Legality of Right in Rem is especially fervent. After being rejected in the fifth and sixth editions of the Real Rights Law Draft of PRC,the Principle of Legality of Right in Rem was incorporated into the Real Rights Law of PRC.Article 5 of Real Rights Law of PRC provides that:The varieties and contents of real rights shall be prescribed by law;Article 8 provides that:There exists any other special provision in respect of real right in any other law,such special provision shall prevail.Principle of Legality of Right in Rem epitomizes the mandatory nature of Real Rights Law,which facilitate the safety and simplicity of transactions.The establishment of Principle of Legality of Right in Rem demarcates the ownership relationship of real rights,and allows the transparency of real rights changes; subsequently,the trading order can be stabilized,and trading safety guaranteed. However,with the advance of science,technology and economic development,the varieties and scope of real property exploitation by human being have expanded continuously.Accordingly,the focus of protection of Real Rights Law has shifted from ownership to utilization.To certain extent,Principle of Legality of Right in Rem hampers the premium allocation of social resources,and inhibits the social development.The fixation and rigidity of Principle of Legality of Right in Rem runs counter to the social development demands. Targeting at the loophole of Principle of Legality of Right in Rem,international justice practice and law scholars have discussed extensively to redeem the weak points and rigidity of the Principle of Legality of Right in Rem,which lags far behind the social reality.The schools of thought aspiring to redeem the Principle of Legality of Right in Rem includes:Total Denial,Customary-Law-Inclusion,Limited Acceptance of Traditional Real Rights and Mollification of Principle of Legality of Right in Rem.After analyzing and evaluating the different schools of thought,the article makes rationality-analysis of Principle of Legality of Right in Rem incorporated in Real Rights Law of PRC by using the example of the Contractual Operation Right of Agricultural Land in rural China.At the end,the article renders some exploratory methods to solve the limitations of Principle of Legality of Right in Rem theoretically and practically.
Keywords/Search Tags:Principle of Legality of Right in Rem, Mollification of Principle of Legality of Right in Rem, Contractual Operation Right of Agricultural Land
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