An Analysis Of The Preoccupation Legal System

Preoccupation system is an old civil law system, which originated from iusgentius of the ancient Roman law. It has three legislation patterns, the Roman lawuses the liberalism one which allows this system apply to both moveable andimmoveable property. In succession on the basic of the Roman law, the GermanicLaw adopts the preemption model and makes some modifications. It imposeslimitation on the subject. The contemporary civil law absorbs the advantages of thetwo patterns and creates a new dualism pattern and be recognized by a lot of countries,for example German, Japan, and Italian. Preoccupation system has the functions ofclarification of property right, promoting full use of objects and ending disputes.Though this system has a place on the ancient Chinese law and the customary law,after the establishment of the new China, this system never appears. However, manyscholars have talked about this theory in their books and articles and it is a hot topic incivil law circles.In recent years, preoccupation always works as a customary law rules in ourdaily life but it cannot be used wildly. Thus several disputes according with highlyeconomic values res nullius happened. There is no definite legislation can solve theseproblems under present legal system and the right of oblige cannot be protected. Bythe case of introduction, the article analyzes this important system and use theliterature and comparative research method. With a horizontal comparison vision ofthis system and other similar ones, and also use a vertical comparison method of other countries legislation and our country’s historical evolution. Then the article elaboratesthe concept and origin, the constitutive requirement, the restriction and theconsequence of the preoccupation system, and proposes several constructions of thissystem in our country. It’s hard to avoid mistakes and deficiencies due to mylimitations in theories and experiences, so criticisms are welcomed from experts andadvisors.