The Research On The Object Of Real Right

Different people have different opinions about the understanding of the object of real right. This paper starts from the exploration of object of real right in the comparative law, elaborating and discussing the provision of legislation on the object of real right of different time on different countries and analyzing and commenting current theories about the object of real right. Based on above analysis, the author puts forward his comprehension about the "res" which acts as the object of real right, namely, the object of real right should be discussed under a particular real right type. This paper consists of the following four parts.The first part: the exploration of object of real rights in the comparative law. The word "res" in the Roman law refers to the property and it has a wide meaning which contains the real right, credit right, inheritance right and so on in the civil law. By the influence of the different understanding of res and property in the Roman law, Civil Code of France adopts the concept of property. However, Civil Code of France still uses the word "res" when it formulates the ownership, usufruct, easements and so on. That is to say, Civil Code of France hasn't abandoned the concept of the "res". The Civil Code of Germany on one hand limits the "res" to the res corporales and on the other hand removes the animals from the scope of the res. Japan and Taiwan adopt the civil law of Germany that limit the object of the real right to the res corporales. The law of real right in China stipulates that the object of real right includes the real property, the personal property and the rights prescribed by the constitution and the law. It classifies the thing into the real property and the personal property, but not define its meaning.The second part deals with the definition of res as the object of real rights. According to "broad sense res theory", "res" as the object of real rights contains both the res corporales and the res incorporales. "narrow sense res theory" mentioned that "res" acts as the object of real rights is the res corporales not the res incorporales, also called "things are all tangible". According the opinion of "interests of property theory", object of the real right is property interest. This claim was proposed on the basis of the reflection of "broad sense res theory" and "interests of property theory". The author thinks that the limited explanation of the res corporales as "external shape" is out of date and "the abstract, objective existence" should replace it. The res corporales exists in the objective existence which is beyond control and can bring interests.The third part concentrates on the analysis of the object of real right in a particular real right type. No matter which kind of theory of the object of real right, they all have advantages and disadvantages.The author believes that only this kind of theory construction which the object property should be discussed under a specific property type can hold water, so the object of ownership, usufruct and security rights are discussed one by one. The author considers that the ownership is the most complete one in all types of real right, whose object only include the res corporales that comprehended by "the objective existence" in place of "the external shape". Therefore, virtual assets and animals also belong to this type. The object of usufruct includes the real property and the personal property, rights is also the object of this type for China's specific conditions and the land system. The object of security interest still includes the real property, the personal property and rights rather than the ownership of the real property and the personal property.The fourth part: the extension of the object of real right. With the development of science, the traditional object of real right showed the tendency of expansion. Every national and regional legislation sticks to the principle of "things are all tangible", using the form of "permitting" and "regarding" makes natural force and space etc. included in the object of real right. After that, it confronts with such new issues as the materialization of natural person and virtual assets and the legal status of animals. This paper argues that the use of new technologies changed things not known and controlled by human into those that can be controlled, so does the thing reached further expansion in connotation and extension.