Font Size: a A A

Relaxation Of Real Right Legal Doctrine In China

Posted on:2020-02-03Degree:MasterType:Thesis
Country:ChinaCandidate:D LuoFull Text:PDF
GTID:2416330572494046Subject:Civil and Commercial Law
Abstract/Summary:PDF Full Text Request
The Property Law of the People's Republic of China promulgated in 2007 clearly stipulates the statutory principle of property rights.The General Principles of Civil Law,implemented in 2017,follows the provisions of Article 5 of the Property Law,which was reaffirmed in Chapter 5 “Civil Rights”.However,for the statutory principle of property rights,there has always been controversy in China's academic circles,which mainly involves the connotation,extension,effectiveness and survival of the legal principles of property rights.This paper takes "the mitigation of the legal principle of property rights in China" as the topic,based on the analysis of the connotation,extension,effectiveness and function of the legal principle of property rights,and discusses the mitigation of the legal principle of property rights based on the development needs of social practice and the legal theory.A more specific implementation path is proposed for the mitigation of the statutory principle of property rights.This article is divided into four parts:The first part mainly demonstrates the necessity of easing the legal principle of property rights.In theory,the main reasons for adhering to the statutory principle of property rights are:it is conducive to safeguarding transaction security and saving transaction costs;it is conducive to maintaining property rights and building a property rights system;it is conducive to sorting out old property rights and adapting to social development;The stability of the economic order.However,some scholars have criticized the statutory principle of property rights: the statutory principle of property rights has excessively interfered with the free space of the parties' meaning,which is not conducive to promoting the best use of materials,inspiring the vitality of market innovation,and promoting the development of social economy.What is more,the negative principle of the legal principle of property rights has also been advocated by some scholars.Objectively speaking,part of the statutory principle of property rights has the rationality of existence,and the negative principle of the legal principle of property rights cannot be established.Therefore,it is more reasonable toadopt the principle of easing the legal principle of property rights.The second part mainly analyzes several theories about the mitigation of the statutory principle of property rights.The main doctrine of easing the legal principle of property rights is that the property rights law should only include the types of property rights and property rights publicity,and should not include the legal content of the property rights;the legal rights of new property rights should be granted by judicial precedent and theoretical doctrine;The extension of the law allows other normative legal documents to recognize new property rights;based on the existing framework of ownership,usufructuary rights,and security property classification,different adjustment rules are set according to their different characteristics;The role played by the legal system and social life is reclassified into two basic categories:basic property rights and functional property rights.The former should adhere to the statutory principle of property rights,while the latter can adhere to the principle of free creation of property rights;A more lenient explanation of the legal principle of property rights,so as to achieve the effect of easing it.Different scholars have different understandings of the statutory principle of property rights,which leads to a big difference in their views on the content of the “rationality” of the legal principle of property rights.In general,the mitigation of the statutory principle of property rights should include the easing of the types and contents of property rights,and the mitigation rules need to be determined in combination with the nature,characteristics and functions of property rights.The third part mainly analyzes the limitation of the mitigation scope of the legal principle of property rights.From the two aspects of the criteria for judging the scope of the statute of property rights and the legal extension of the statute of property rights,it is considered that the most basic limits should be retained when the statutory principle of property rights is moderated.The content shall not harm the public interest of the society and the legitimate rights and interests of third parties.In addition,the legal source of the mitigation of the statutory principle of property rights should include narrow laws and normative legal documents,judicial interpretations,guiding cases,customs,basic principles of civil law,jurisprudence,international treaties,and international practices as stipulated inthe Legislative Law.Laws such as the broad ones;when the statutory principle of property rights is alleviated,the "Property Law" should be taken as the basis.Other laws can be refinement and supplementation without violating the relevant provisions of the Property Law;only the same law as the Property Law The legal or legal interpretation of the effectiveness level is based on the need to safeguard the public interest to limit the types of property,the content,and the conditions under which the right holder exercises the property rights.The fourth part mainly expounds the realization path of the easing of the legal principle of property rights.There are two ways to achieve the easing of the legal principle of property rights: First,the amendment of the law will embody the idea of easing the statutory principle of property rights in the legislation;second,the judicial principle will be used to mitigate the statutory principle of property rights.In order to adapt the property law to the development of social economy,the property law should give the parties the freedom to create property rights;the free space for the parties to create property rights should be differently restricted according to the different functions of property rights,and it is easy to affect social stability for social public interests.The property rights need to be clearly stipulated by the law,prohibiting the parties from freely creating;for the property rights that are beneficial to the promotion of the utility of the object and do not harm the public interest of the society and the legitimate rights and interests of the third party,the parties should be allowed to set freely according to their own needs.In addition,if the new property right set freely by the parties violates the public interest or infringes the legitimate rights and interests of the third party,the referee may deny the validity of the legal act through the basic principles of civil law.
Keywords/Search Tags:Statutory Real Right, Real Right in Will, Principle of Relaxation, Public Interest
PDF Full Text Request
Related items