On The Types Of Claims And Their Relationship Regarding The Protection Of Ownership

The protection of ownership is a traditional, common concept. Yet, it is also a complicated, fundamental subject which involves a lot of basic principles and related institutions. It can not only be understood as an institution of property law, but should be treated as a crucial link in the systematic process of abstraction. However, it seems to be incompatible between the theory of claims, the theory of rights behind it, and the theory of civil liability. Where theoretical difficulties arose, it is also the most critical point for understanding the different stances concerning claims. This is exactly what this paper seeks to clarify. It is divided into four chapters, in addition to the introduction and conclusion.The first chapter points out the current situation and problems. Although the legislation has stipulated the right of the real claim and determined its basic content, there is no clear relationship between the right of the real claim, tort claims and the underlying civil liability. Neither is there clear theoretical interpretation in terms of their nature and attribution.In the second chapter, the right of the real claim is placed in the rights system to be analyzed. First of all, it is necessary to examine two factors contained in the concept, namely claims and property rights, in order to describe the concept. Following that I try to start with a functional point of view of rights. The rights would be divided into the primary rights with the function of distributing interests and the secondary rights with the function of protection and realization. Thus, property rights as a manifestation of freedom of owner’s action directly reflects the distribution of life interests. The right of the real claim, to be included in the secondary category of rights, becomes a technical tool to protect and realize the property rights. By assessing the interrelationship between the aforementioned two kinds of rights, the nature of the right of the real claim is revealed.The third chapter aims at further understanding the function of the right of the real claim and civil liability by referring to the comparatively well-established relationship between claims and responsibility regarding debtor and creditor. Moreover, taking return of the original object for example, the right of the real claim reflects a state responsibility, which is independent from the tort claims on the one hand, and on the other hand, can coexist with the latter based on civil liability.On the basis of the theoretical analysis in the previous two chapters, the fourth chapter differentiates different types of return of property claims that correspond to different kinds of civil liability, in order to reconcile the relation between the theory of claims and the theory of civil liability.With reference to the method of function comparison, this paper draws on theories in the German Law, while it is at the same time rooted in the implementation of legislation and legal text in China. It attempts to deal with legal materials in a systematic way, and strives to make them logically coherent. The intention of this paper is to make the subject of ownership protection internally compatible without overall logical contradictions through the legal interpretation.