Research On The Nature Of Property Rights

As one most essential method settled to eliminate infringement or threat of infringement on real property, claim of real right plays important role in real right protection. For the purpose of appropriate arrangement of claim of real right in civil law system and to achieve the expected function of claim of real right, we need to indicate the nature of this right firstly. Instead of traditional normative analysis routine basing on provisions and structure of Germany Civil Code, this thesis tries to focus on the theoretical resource of claim of real right, which established by Windshield and then adopted by the Germany Civil Code with adaption.This thesis is consisted of three parts:introduction, main content and conclusion.The introduction part states the background and meaning of thesis writing by showing the chaotic of theory on nature of claim of real right, offering general description of defects of pre-existed researches, and putting forward author’s research method.The main content is divided into four parts.Part one starts from history review on Windshield’s theory of claim of right and theories of two kinds of claim of real right. The first claim of real right is the right claiming any others keep negative status without any aggressive act to avoid infringement to the real right. The second claim of real right is the right claiming special person who infringing (or threatened to infringe) the real property to stop the wrongdoing or to remove obstruct caused or to return the real property when the person requested is not entitled to the real property.Part two focuses on how the Windshield’s theories of claim of right and two kinds of claim of real right influenced Germany Civil Code. The Germany Civil Code didn’t adopt theory of the first claim of real right, while, it accepted the second claim of real right theory and separated the right into two branches:narrowly defined claim of real right (the third claim of real right) applied for eliminating infringement (or threat of infringement), which forming today’s conventional concept of claim of real right; and tort obligation applied for compensation to substantial damage of real right, which has been provided in obligations chapter.Part three discusses nature of the third claim of real right on the basis of former analysis. Claim of real right is not real right or function of real right, and it is not affiliated right of real right neither. Claim of real right is an independent claim right of remedial character. For the concept "claim right" is identical to "obligation", we may say claim of real right also has a nature of obligation. Additionally, claim of real right is of no priority compared with other obligations.Part four raises comparison between claim of real right and tort obligation, and comparison between claim of real right and tort liability on the background of Chinese civil litigation. Claim of real right and tort obligation share identical "obligation" nature and both of them could be adopted by the tort liability system. While the previous Tort Liability Law is defective in institutional design of claim of real right and claim of absolute right, and further amendment is necessary.Finally, basing on whole argument the conclusion of this thesis will be given.