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Research On The Relationship Between The Right Of Real Claim And The Way Of Bearing Tort Liability

Posted on:2017-03-08Degree:MasterType:Thesis
Country:ChinaCandidate:Q GaoFull Text:PDF
GTID:2296330482993880Subject:Civil and Commercial Law
Abstract/Summary:PDF Full Text Request
In traditional German Civil Law theory, the damages compensation, as the only way of bearing tort liability, can be divided into two ways: restitution and monetary compensation. Virtually speaking, restitution and monetary compensation both are property compensation. Civil Code of German doesn’t have a uniformly provision on the right of real claim and claim for damages compensation. Otherwise, it puts the right of real claim in property law part, and damages compensation in debt law part. But the right of real claim comes before claim for damages compensation for the following two reasons: first of all, seeing from the perspective of protecting the interests of property right, the right of real claim comes before claim for damages compensation; second, when it comes to right relief, the realization of the right of real claim is superior to claim for damages compensation.Different from the traditional German Civil Law, in Tort Liability Law of our country, the way of bearing tort liability absorbs the specific content of the right of real claim. And there are mainly two foundations for it. First, the way of bearing tort liability inherits the provisions of the civil liability forms in General Principles of the Civil Law. Second, Tort Liability Law is under the civil legislation pattern of “right-obligation-liability”. In the way of bearing tort liability, return of property, removal of interference and risk and the right of real claim plays the same role, and they have the same specific content. But their logical construction is different.The right of real claim is under the civil legislation pattern of “right-obligation”. When the right of property owner is violated, he can claim for the right of real claim, and at this time, the right of real claim is protecting the right of property owner. On the opposite, the other party should bear the obligation. In our country, Tort Liability Law is under the civil legislation pattern of “right-obligation-liability”, and it stipulates the liability of infringer, so when the right of property owner is violated, it stands on the point that infringer should bear tort liability when he violates his obligation other than protecting the right of property owner. For the way of bearing tort liability absorbs the specific content of the right of real claim in our country, it’s not conflicting that damages compensation, return of property and removal of interference and risk unified in tort liability. The right of real claim in Property Law is relief law on the point of right owner, but the way of bearing tort liability in Tort Liability Law is liability bearing on the point of infringer. Therefore, the application of property relief law should be interpreted as the following points when applied Property Law and Tort Liability Law. First, in the way of bearing tort liability, return of property, removal of interference and risk and the right of real claim have the same constructive requirements. Second, the right of real claim is relief right standing on the point of right owner, but the way of bearing tort liability stands on the point of infringer. Although civil law theory in our country is mainly adopted from the traditional German civil law theory, but there is no need to inherited it completely, because the civil law system in our country is different from the traditional civil law system in German seeing from the logic of Contract Law, Property Law and Tort Liability Law, based on the rapid development and change of society and civil legislation of pragmatism in our country. There is no need for Property Law to stipulate the right of real claim, and civil code should inherit diversified methods of bearing tort liability in Tort Liability Law, based on the tradition of civil legislation and experience in our country, independent compilation of Tort Liability Law, the protection for the civil right diversification, and the diversified functions of Tort Liability Law.
Keywords/Search Tags:Claim for Damages Compensation, the Right of Real Claim, the Way of Bearing Tort Liability
PDF Full Text Request
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