On The Legislative Arrangement Of Real Right Protection System

The protection of real rights is a legal category with abundant connotation,which can be divided into public law protection and private law protection.Public law protection is the protection of real rights by criminal law,administrative law and procedural law.Private law protection is a civil law protection of real rights.The protection of real rights in the traditional civil law theory mainly includes claim of real rights and claim of torts.From the view of legal development,the legislative arrangements for the protection of real rights in China are mainly: the “General Principles of Civil Law” enacted in 1987 established the protection model for infringement claims that are different from the traditional claims for real rights.The Real Right Law enacted in 2007 also proposes a traditional model of claim of real rights.The Tort Liability Act of 2010 followed the Tort Liability Model of the General Principles of Civil Law.The General Provisions of Civil Law implemented in 2017 further improved the protection of civil liability.Such complicated or overlapping legislative provisions,on the one hand,make the protection of property rights difficult and divergent in the application of the law.On the other hand,they also violate the scientific and rigorous features of the modern legal system.Coinciding with the timing of the compilation of the Civil Code,the clear legislative arrangements for the protection of property rights and the establishment of a sound rights relief system are indeed an important part of the compilation of the Civil Code.Around this topic,this article is divided into five parts.The first part is the historical reflection of the protection system of property rights.From the perspective of historical jurisprudence and comparative jurisprudence,the article first introduced the system of protection of property rights in Roman law,French civil law,German civil law,and our civil law.Through the historical evolution and the investigation of relevant laws outside the region,the development trend of the system of protection of property rights has been summarized and the problems existing in the current legislative model of our country have been raised.The main problems are the duplication of laws and the unclear application prerequisites,and different relief approaches are prone to produce contradictory results and other practical drawbacks.The second part is the theory and legislation of the property rights protection system.First of all,it briefly reviews the three theoretical theories of civil law scholars on the path of property rights protection.They are the claim of property rights,the claim of torts and the theory of civil liability competition.Then it analyzes the three kinds of legislative systems of property rights protection,namely the claim of property right style,the claim of torts style and the dual-track style.Based on this,a comparative analysis of the above three paths of property rights protection was conducted.Finally,the article reviews the current dual-track system of property rights protection in China from logic and theoretical perspective.The third part is the discussion of the meta-problem of the property rights protection system.Starting from the structure of civil rights,the content of civil rights includes only active function and negative function.The relief function does not belong to the inherent function of civil rights.The remedial right is an external technical and relief right that comes from the procedural law.It must have special provisions in the substantive law in order to fully play its role.The remedial right includes four types:private remedial right,right of formation,right to defense and right of claim.Based on this,the most fundamental thing in the legislative arrangement of the system is to solve the problem of the claim foundation.After that,the article analyzes the claim basis of property rights protection and provides a new solution to the choices of the property rights protection path.Through legislation,when property rights are infringed or may be infringed,property owners may enjoy the claim of danger defense,the claim of obstacles exclusion,and the claim for damages.These three types of claims can be used as a unified alternative to traditional claims of property rights.Basically,it can solve the problem of the inability to protect property rights and the drawbacks of the dual-track system.Finally,through the specific clarification of the application,constitutive elements,faults,as well as the statute of limitation of the aforementioned three types claims,we discuss the means of remedy claims for property rights protection.The fourth part is the reason why the claim of torts replaces the claim of real right.First of all,the civil code subprovision should not specify the claim system of property rights.Because our country's legal norms have never been the traditional claim system of property rights,the mode of property rights claims does not meet the direction of China's construction of the modern legal system.China has already possessed a legal basis for the protection of property rights in the form of tort liability.Secondly,the institutional design of unified protection of property rights with infringement claims has the following advantages: clearly distinguishing debts and responsibilities,making the debt law more scientific;better protecting civil rights,with much more judicial applicability;it can improve the current ambiguous legislative provisions on property rights protection and make the boundary between the Property Law and the Tort Liability Act clearer.The fifth part is the institutional arrangements for the protection of property rights in China.First of all,the property rights protection system should be regulated by the Tort Liability Law.The part of Real Right in the Civil Code does not provide the claim of property rights.Secondly,the specific path for the real rights protection by the claim of torts is: to replace the elimination of danger and cease the infringing act with the claim of danger defense,to replace the exclusion of hindrance and recover of original property with the claim of obstacle exclusion,and to establish a claim for damages in accordance with the law.Thirdly,the article responds to the three main problems in the process of the claim of torts replacing the claim of real rights: the question of priority of property rights,the imputation principles of tort liability,and the statute of limitations.Finally,in order to contribute to the compilation of the Civil Code,the article also puts forward several suggestions for the construction of the Civil Rights Relief System.