Research On The Principle Of Distinguishing Effectiveness

Distinguishing the reason and result of the alteration of real right and endowing with them the different legal effectiveness is the basic connotation of the principle of distinguishing effectiveness. It is reasonable. Real right law of our country embodies and implements the principle of distinguishing effectiveness. It is of significance to the theory of civil law and the judicial practice. Theoretically, it claims a clear distinction between the relationship of obligation and the relationship of real right, and makes the system of civil law more harmonious. In practice, it is helpful for protecting the interests of creditors and stabilizing the economic order. But, the regulations in real right law are simple. It's not enough to the complicated living. In order to apply the principle accurately, it is necessary to make the more deep discussion with the theoretical problems. Based on real right law, contract law and other related laws, and used the comparative analysis and empirical analysis method, the article makes the systematical analysis and discussion to the principle of distinguishing effectiveness. Removing the quote and epilogue, full text is divided into four parts altogether.Taking the nature of delivery as the breakthrough point, the first part analyzes the connotation of the principle of distinguishing effectiveness in detail. In the principle, delivery is regarded as the act of fulfillment of creditor's right, and is separated from the causal action. It is the logic starting point of establishing this principle. Normally, the academicians qualify delivery as the legal act or factual act. I think that the delivery is the factual act which doesn't contain the separate accord of transferring real right. The so-called distinguishing effectiveness is the principle which regards the reason and result of the alteration of real right to take effect as two different legal facts by applying the different laws. Its basic content mainly includes two aspects:the distinction of causal action and resultant action of the alteration of real right; the distinction of effectiveness of contract and effectiveness of the alteration of real right. The latter is the most important content which determines the effect of legal application. The second part analyzes the theoretical basis of the principle of distinguishing effectiveness relying on the theory of verfugungsgeschafte. Compared to the principle of distinguishing effectiveness, the principle of distinction in the theory of verfugungsgeschafte is of the meaning of source, and it's the premise and foundation to understand the principle of distinguishing effectiveness deeply. Therefore, the part studies the basic connotation of the theory of verfugungsgeschafte in first, and then transits to analyze the theoretical basis of the principle of distinguishing effectiveness with the intermediary of the relationship between the two. In simple terms, the theoretical foundation of the principle of distinguishing effectiveness is the distinction of the right of claim and the right of domination, and the distinction of act of disposition and act of debt.Through the comparable research of legislative cases, the third part mainly introduces the mode of the alteration of real right and the relation between it and the principle of distinguishing effectiveness. The two are related closely. So the study of the principle of distinguishing effectiveness will inevitably involve the mode of the alteration of real right which can be roughly divided into intentional principle of obligation, formalism of real right and formalism of obligation. The intentional principle completely excludes the application of the principle of distinction. The accord of obligation between the parties can make real right to transfer directly. Relatively speaking, the mode of formalism all adopts the principle of distinction as the method of adjustment. The difference is that the effectiveness of reason and result is distinguished in formalism of obligation, but formalism of real right which based on the theory of verfugungsgeschafte insists the distinction between verfugungsgeschafte and verpflichtungsgeschafte.The application of the principle of distinguishing effectiveness is discussed in the fourth part. The legislations and judicial interpretations about the alteration of real right are chaotic before enacting the real right law. And the principle's application can effectively solve the problem. This part discusses the practical significance of the principle of distinguishing effectiveness in first to set the value goal. And then it makes the empirical analysis about classification by simplifying examples. Especially when the interests of third part involved, the application of the principle of distinguishing effectiveness must coordinate with unauthorized disposition system, bona fide acquisition system and so on to protect the security of exchange.