Analysis Of Numerus Clauses、Relaxation And Numerus Apertus

Roman law form the ideology of numerus clauses,the numerus clauses principle take shape in French civil law,German civil law strengthen this principle under the framework of the external logic system,and the Japanese civil law and the Taiwan civil law follow the principle and improve it in the specific application process.Such a process from fuzziness to clarity is also a cognitive process for the importance and necessity of the principle,and only after establishing the numerus clauses principle,we can consider the perfect policy.Although there are no explicit provisions on the legal in the Anglo-American Legal System,the principle has become the silent follow of the judges,which can be followed in both theoretical and practical fields.The fact that the principle of numerus clauses coexists with the continental lagal system and the Anglo-American law system reflects the intrinsic value and the non formal rationality of ensuring the operation of the civil law.It is true that the numerus clauses principle contains advantages and disadvantages,which is the main reason why the principle still has not been debated even if the Real Right Law has been strictly stipulated in our country.On the one hand,the numerus clauses principle maintains the stability and security of our political and economic system,establishes stereotyped system of real right and keeps the absoluteness of real right.The security of the static attribution of real right is upheld.And because of the establishment of the stereotyped real right system is convenient for public summons,the efficiency and the cost of the transaction are improved,and it has a positive significance in promoting the safety and efficiency of dynamic trading.On the other hand,because of the limitations of the legislator,the lag of the codified law and the strong blocking of the "new real right" by the principle,the real right law under the principle has a closed and rigid backward state,which has caused the dilemma of judicial application in practice,and it is difficult to adapt to the needs of the active market economy.Therefore,some scholars have debated the appropriateness of the numerus clauses principle,and suggested that the principle should be eased appropriately.Other scholars directly traced back to the debate on the necessity of the principle.And they think it’s time to carry out the numerus apertus.Scholars have profound theoretical foundation,and their discussion is full and accurate.But because the numerus clauses principle has both irreplaceable institutional value and flaws,which is difficult to ignore.Different emphases can be drawn from different points of view.If we continue to discuss at the macro level,it is difficult to draw a conclusionon the existence or abolishment of the numerus clauses principle.From the microscopic level,namely the specific property rights category,the author analyzes the difference of the functional orientation and value orientation between ownership,usufructuary right and security interest.By analyzing the application of the numerus clauses principle in every field,the author will maximize the ease of the principle’s inherent defect by the best combination of systems.Due to the consideration of consolidating the political system of our country,the demand for the security of the static attribution of real right and its unique singleness,the ownership should be strictly legal.The stable usufructuary right system inevitably brings about rigid problems while protecting the ownership and transaction safety.It should be eased on a statutory basis.In the civil code,the content of relaxation is stipulated in the usufructuary right compilation.security interest is based on the law of ownership and usufructuary right,so its content is also legal.But its essence is becoming more and more homogenous,which decides that its category should be free.In the security interest compilation of the civil code,we can adopt the classification standard of the movable property and the real property directly,then make a unified legislative mode of chattel guarantee to internalize the drawbacks of the numerus clauses principle.