The Predicament And Outlet Of Property Rights And Claims For Binary System

“The dualistic framework of real right – personal right” has its historical path of development. It originated from “actions in personam” and “actions in rem” in Roman Law, then “right over a thing” and “right on a person”. According to the object standards or effectiveness standards, it was divided with creditor's right and real right. Since the promulgation of German Civil Code in the 19 th century, this framework is totally formed. The real right is located in absolute control, exclusive effect, the creditor's right happened in relative effect and is a right of claim. Besides, the differences between them are also located in many other aspects. Rights as a basic element of the law is an important tool for awareness of social reality. For a long time, property, the dual structure can certainly achieve better social phenomenon subsumption normative function. But as society changes, social structure becomes more complex and the binary system is unprecedentedly challenged and struck, such as transformation of real right into creditor's right, creditor's right into real right, the system of the third party infringing creditor's rights and new property right. Such new things and phenomena can hardly be explained by traditional property right theory Scholars have put forward different views. I support this view: on the base of preserving the distinction of real right and creditor's right, break the rigid thinking, propose an improved solution. In this paper, I take the beneficial right of trust, the right of virtual property as examples to illustrate how to explain these new right forms, in order that they can be correctly positioned in the dualistic framework. I also take the spouse right as an example, to apply these methods into the analysis of Parental Right.