Talking About The Legal Relationships Which Realize The Domination Of Property Contracts

The phenomenon that making the obligatory right turn to having the character of real right is not clear in the legal system of property law and the question why and how the obligatory right will have effects on the third party is controversial in the academic world.To solve the problem,we should come back to the essence of the issue.The concept of obligatory right and real right is interrelated because their base is built in extreme special case.Especially for the obligatory right which realizes the domination of property> whether the leasing contracts%the contracts of loan for use or the usufructuary right shall realize the domination of property by the means of contracts.So the above-mentioned legal relationship are not like ownership,which will completely dominate the objects free of other people.For the legal relationships which realize the domination of property by contracts,there is no obvious distinction among them except for usufructuary rightjust because it has the way of publication.Accounting for the principle of legalism of Jus In Re, these relationships are divided into jura in re aliena and pure obligatory contracts.The former have absolute effects and can have influence on the third party,while the latter just have relative effects.But sometimes the demarcation between intojura in re aliena and pure obligatory contracts is not clear especially for the obligatory right which realizes the domination of property.For these relationships.they may have the possibility of making the obligatory right turn to having the character of real right if legal policy needs,we can take the leasing contracts and agreement on share of management reached by joint owners for example.But once the relationships are brought into jus rerum,they should obey the rules of this area.On the one hand,they should have the means of publication.On the other hand, these regulations ought to be stipulated by written law to protect the interests of third party acting in good faith, for the same consideration with the principle of legalism of Jus In Re.We can learn the experience from TaiWan Strait,China.For one thing,in order to promote the efficiency of objects.although agreements on share of management reached by joint owners are thought to be obligatory contracts,the judges tend to make them have effects on the third party unconditionally or if the third party knows the contracts.But the super obligatory contracts trigger lots of confusions and discussions.At last,the authority adopts the routes of making the obligatory right turn to having the character of real rightFor another,owing to the lack of written law,we should be careful when it is necessary to adopt the method of applicaton by analogy to use the rule of making the obligatory right turn to having the character of real right, we should think twice for the precondition and policy of the law, or it will harm the existing legal system.The argument if the contract of loan for use should have the effect on the third party has proved this demonstration.In most of the cases, the adjustment of individual case by the basic principles of the civil law is more appropriate than generally accepting the way of making the obligatory right turn to having the character of real right to achieve the purpose of balancing the interests in present legal system of property law.Basing on the forementioned observation, we can have a good understanding of Chinese current law on leasing contracts and try our best to perfect them.