Study On Formative Right

Formative right is one of the important concepts in the general principle of the Civil Law. Whereas, the study of formative right is so scarce and the existing theoretical results about it are lack of scientific and systematic logic, which is not equivalent to its significant status. Therefore, on the basis of figuring out generation and development of the theoretical background of formative right, this paper is concerned with several essential problems which have caused heated discussion among the academic circles, so the basic theoretical system of formative right can be established and the scientific understanding to it can be promoted.This paper discusses formative right from five perspectives. The main contents are as follows:The first part contains the theoretical background of the origin and the development of formative right. The author tries to figure out the venation of the historical development of formative right and find out the theoretical factors that determine the characteristics of formative right, which can lay a good foundation for other parts.The second part mainly discusses the essence and the legitimate basis of formative right. The essence of formative right is the unilateral decision made by obligee and the obedient obligation made by obligor, which can determine its independent status in the whole system of rights. Principle of autonomy of will is the foundation of the whole civil law, and in the relationship with it, the essence of formative right has two sides——conforming to it and deviating from it. Through a detailed investigation to this relationship, the legitimate basis of formative right can be revealed.The third part is about the status of formative right in the whole right system. Through studying the theory of the object matter of right, the object matter of formative right can be determined to the civil legal relationship, which decides that its legal force is changing force. Combining with the classification according to the function of right, the author believes that formative right should be put under the concept of variation right, which is in parallel with the concept of the right of the dominance and the right of claim. Through figuring out the object of the right will we find out the status of formative right.The forth part is the summary of the main characteristics and the main types of formative right. Through summarizing the characteristic of formative right and respecting the history of the origin and development of formative right, the characteristic of formative right can be genuinely generalized. Through it, we got a standard to judge several controversial formative rights, so the problems of internal unity of formative right can be solved and the formative system can be purified.The fifth part mainly introduces the limiting rules of formative right which includes the general limiting rules and the special limiting rules. The former rules are generally applicable; the latter rules are individualized approach to formative right.