Theory Of The Relaxation Of The Legal Principle Of Real Right

The principle of legality of real right means that the types and contents of real right can only be stipulated by narrow law,and the parties can not change the real right by agreement.At the beginning of the formulation of the principle of legality of real right,there was a heated debate on whether to implement the strict principle of legality of real right in academic circles,and finally adopted the strict principle of legality of real right.So far,the criticism of the principle of legality of real right in academic circles has not been interrupted.Although the new General Principles of Civil Law stipulates that custom can be applied in the absence of law in Article 10,it is a great progress in legislation.However,Article 119 still stipulates strict legal principle of real right,which has aroused some scholars' dissatisfaction.With the development of social practice,it is true that some rights of the nature of real rights can not be protected,which brings difficulties to the application of the law of the court and the protection of the rights of the parties.I think it is necessary to explore whether the principle of legal property rights should be mitigated and the specific ways of mitigation.In the first part,the author discusses the necessity of easing the legal principle of real right.Scholars have put forward two different opinions on the preservation and perfection of the legal principle of real right.One is to mitigate the legal principle of real right,which mainly includes the legal mitigation theory of real right,the inclusion theory of customary law and the limited recognition theory of customary real right.The other is to mitigate the legal principle of negative real right,which mainly includes the affirmation of strict legal theory of real right and the legal disregard of real right.In theory,the principle of legality of real right has the problems of closeness,lag,conflict with the rule of autonomy of the will,and disappearance of the background of reorganizing the old real right.In practice,there are some rights of the nature of real right,such as transfer guarantee,residence right,pawn right,usufruct of operating cemetery,etc.Because there are no provisions in the law,the court's decision can not be followed and the standard is not clear.The principle of legality of real right must be mitigated.The relaxation of the principle of legality of real right is reasonable and most in line with China's national conditions.It can remedy the drawbacks of the principle of legality of real right and coordinate the relationship between order and freedom.In the second part,the author uses the method of comparative law to study the mitigation of the legal principle of real right in Germany,France,Japan and Taiwan,and finds that all countries have mitigated it to a certain extent on the basis of recognizing the legal principle of real right.Germany and France have recognized some customary real rights through precedents,and Japan has also recognized some customary real rights in judicial practice.Taiwan of China has explicitly stipulated in the law that customary real rights can be created.Customary real right plays an important role in the methods of easing the principle of real right statutory in various countries,which provides a reference for the easing of the principle of real right statutory in our country.In the last part,according to the national conditions of our country,the author thinks that the way to mitigate the legal principle of real right in our country can admit that judicial interpretation may create real right under certain circumstances,judicial interpretation can interpret real right when the legal provisions are not clear;administrative regulations can formulate specific kinds of real right under the authorization of the National People's Congress,and administrative regulations can create real right under the circumstances of the authorization of the National People's Congress.In order to conform to the characteristics of real rights and be able to publicize,the types are basic real rights which have nothing to do with the public interests of some functional real rights.Customs can be used as the source of real rights by judges in the process of trial when laws,judicial interpretations and administrative regulations are absent.The main types of property rights beyond the customary legal provisions are functional property rights and usufructuary rights unrelated to social and public interests,such as alienation guarantee,alienation guarantee,pawning right,residence right,usufruct right of operating cemeteries,etc.