The Controversies And Legal Interpretation Of Juristic Acts Of Real Rights

The theory of juristic acts of real rights is initiated by Savigny, therepresentative one of the19thGermany historical-method-school. The theory isintroduced to our country in the late80s, then causing a heated debate in the90s.The debate hasn’t come to an end since the issue of Real Rights Law in2007. Asfar as I am concerned, it is essential to interpret the legislation in operation beforewe decide whether or not to admit the juristic acts of real rights.The debate about the juristic acts of real rights are mainly divided into threefactors. First of all, there exists different interpretations of the concept of theJuristic acts of real rights itself; Secondly, the legislation in our country calls for adefinition of whether or not to acknowledge the independence principle of thejuristic acts of real rights; Thirdly, it has not been clarified that if the principle ofbeing abstract is the only choice to protect the safety of trading. On account of thethree issues, my dissertation are divided into four chapters.Chapter one introduces the origin and development of the theory of thejuristic acts of real rights in Germany and puts forward that Savigny hasn’tmistaken Roman Law in comprehension but has extended the theory of the juristicacts to the area of Real Rights Law. The proposal of the theory of the juristic actsis to the benefit of the construction of a scientific system of Civil Law.Chapter Two analyzes the concept and content of the juristic acts. Firstly, through analyzing different points of view from scholars in Germany, Japan andTaiwan, I put forward that the concept of the juristic acts should adhere to thecombination of the subjective declaration of will and the objective behaviors ofregister or delivery. Secondly, combining with France and Japan’s legislationmodel of integrated strategy of obligatory rights and real rights, I introduce theseparation principle, which complies with the modern economy that emphasizesthe non-real-time trading; then I introduce the principle of being abstract on thebasis of the interpretation of Germany doctrines.Chapter Three sorts out the controversies of the juristic acts of real rights inour country. The first part is about the controversies from the late80s to the90s,which are divided into three factions: the positive theory, the negative theory andthe compromise theory. My dissertation makes a generalization of their points ofview. The second part is the different interpretations of the theory of juristic acts ofreal rights from the three factions after the declaration of Real Rights Law, in thispart, my dissertation combines with the judicial consideration of draft bill of RealRights Law and judicial precedent. The judicial consideration indicates that thetheory of juristic acts of real rights has never been taken into discussion. Mostjudgments have just put forward the concept of juristic acts of real rights, but notadmit the character of being abstract.Chapter Four analyzes whether our legislation reflects the theory of thejuristic acts of real rights from the perspectives of literal interpretation, system,purpose and history on the basis of the basic interpretation of law. Then I make aconclusion that our legislation actually acknowledges the separation principle ofthe juristic acts of real rights while it doesn’t reflect the character of being abstract.But I also think that the theory of the juristic acts of real rights is significant to theconstruction of a scientific civil-law-method. The theory of being abstract andjuristic acts of real rights in Germany are in harmony with its registration system,unjust enrichment system and bona fide acquisition system. By contrast, thesesystems in our country are not scientific and complete. If our Civil Code is revisedin accordance with German Civil Code, there will be systematic space for the transformation into the theory of being abstract.