The Development Trend Of Foreign Property Rights

Property is the right that law-defined subject directly manage the goods and exclude the interference of others. It includes the right of possession, use, income right, right of disposition. Property is called "right in rem"in Rome law.The concept of property is used in civil law countries and originally proposed by the medieval glossators. In the legislation, the word "property"was first appeared in1794"The prussian common law"and1881"The Austira civil code", and the dedicated property papers in1900"the German Civil code"was marking the formal establishment of the concept of property rights. Property is one of the most important civil rights and the basis of all economic activity. Because of the extremely importance of property, all countries in the world, without exception, has made specific and clearly defined about it in civil legislation. Foreign Property is also called the International Property Rights, refers to a property or property rights of foreign elements, including the main foreign, the object of foreign and the legal facts concerning foreign affairs which caused the property generates,change or eliminate and so on. Due to the different social systems, historical conditions, the economic base and cultural traditions between various countries and regions,the provisions of property are not the same, some even very different, making the conflict of laws relating to property rights in foreign civil and commercial exchanges fierce. These fierce conflict of law not only affects normal contacts of people in different countries and regions, influence the conduct of international trade and the international flow of goods, and even affect the normal diplomatic relations between countries. The legislation relating to adjustment of foreign property relations has mainly reflected in "the Civil Law" and "the Law of Law Application of Foreign Civil Relations". However, it can be found that by carefully study of these two laws, because of "the Civil Law"has been enacted due more distant years,it can be described as incomplete regulations. Even though there are plenty of innovation and brand-new content about the adjustment provisions relating to the foreign economic relationship in the latest development and implementation of the "foreign-related civil relations law"which has the milestone meaning in the history of our adjustments of foreign economic relationship legislation, there are still many shortcomings and parts of the law which worth to explore. In addition to the full text of the introduction and the conclusion, divided into the following three parts:The first part is mainly elaborate about how did the foreign property law applicable generate and develop. As early as the Middle Ages in Europe, the law applicable to foreign property rights had already sprouting, and in the early Middle Ages, has a doctrine of personal characteristics, and to the Middle Ages the Property territoriality has dominated all the Europe. The questions about the law applies to foreign property officially appeared in the14th century and has passed the following three stages:the separated applicable laws stage; uniform applicable law stage; diverse stages of applicable law. During this period, the principle of foreign economic relationship applicable to the Lex situs has been gradually accepted by national legislation and judicial practice. The Lex situs principles also has gone through three stages of development:Before the19th century, whether movable or immovable property shall be applied to the Lex situs law; early19th century to the20th century, the property is divided into movable property and real property, and applied to different laws. The movable property applies to the personal law by owner of the property, and the real property applies to the Lex situs. since the late20th century, in view of movable and immovable property have huge influence on a country’s flow of goods and economic life, countries not only strengthened the legal jurisdiction of real property in their countries, but also strengthened legal control of the movable property located within their territory.Therefore, movable or immovable property are apply to the Lex situs principle has been widely adopted by countries.The second part is mainly about the current legislation and shortcomings of foreign property law applicable in our country. The current legislation of foreign property law applicable in our country is mainly as follows:Property is divided into movable property and immovable property and applied to different rule of law.The movable property applies to personal law and immovable property applies to territorial law.the law applicable of chose in action has a enumerated-type general provisions. The defects of foreign property applicable law is mainly using the implementation of "Law of foreign-related civil relationship"as the time point, divided into before and after the implementation of the law applicable to foreign property defects. The defects before the implementation include:the legal regulations are not systematical; the law regulations are not comprehensive; the legal regulations are unscientific; the legal regulations are not specific; The defects after implementation include:The interested party does not make the necessary restrictions to the scope of the choice of law;"split system" applies to the foreign property applicable law; it does not form a truly unified or systematical foreign-related civil relations applicable law.The third part discusses the Improvement of legislation of the foreign Property applicable Law. This part is mainly combined with the current legislative status and lack of foreign applicable law, as well as the history and trends of foreign applicable law, to put forward some suggestions on the improvement of foreign applicable law, including: the type and the object of foreign matter should be correspond to the existing legislation; Foreign movable property shall make the necessary restrictions about the autonomy of will; We should focus on protecting the safety and order of domestic property transactions; Pay attention to the comparative studies of different countries’private international laws; Put the "not against a third party" clause into the items of party autonomy principle; Use "the same system" in the foreign property applicable law.