Study On The Scope Of German Constitutional Property

Scholars in Germany have fully discussed the issue of constitutional property according to the German constitution,but not to the property rights in civil law.Although the German Federal Constitutional Court did not explicitly explain the scope of the German constitutional property,but it has been clarified that the German constitutional property is not the same as the property in the general law and it has gradually developed five elements of constitutional property.The concept of property is not defined in the Chinese Constitution.Also it is difficult to judge if a right is under the scope of constitutional property.But many scholars did not focus on this issue.Therefore,this paper intends to make some suggestions for determining the scope of Chinese constitutional property by studying the expansion process in the scope of German constitutional property and those elements.The main contents of this paper are as follows:The purpose of the first chapter is to clarify the situation of the studies about constitutional property in China and Germany,especially to expound the problems in the study of the scope of the current constitutional property in China.There are two main problems in the study of the scope of the constitutional property in China: the confusion between the concept of constitutional property and that in civil law;and the lack of methods for determining the scope of the constitutional property.The scope of the German constitutional property will be discussed in the second chapter.First of all,the scope of German constitutional property can only be clarified according to the text of the German Constitution.Second,the scope of the German constitutional property has gone through a development process from ownership to private law rights to the inclusion of some public law rights.The third chapter focuses on judgments of the German Federal Constitutional Court and then clarifies the five elements for judging the scope of the German constitutional property: property value;private use;right of disposal;personal contribution;survival guarantee.Among them,property value is an essential element of all constitutional property,whether they are private law rights or public law rights.On this basis,private use and right of disposal are the elements for judging private law rights,while personal contribution and survival guarantee are the essential elements for public law rights.The fourth chapter will,based on the German experience,analyze whether these elements are feasible and appropriate,and propose elements for judging the scope of the property in the Chinese Constitution.In this regard,we need to consider whether it is appropriate to use personal contribution and survival guarantee as the elements for judging public law rights in China.