The Defects And Resolution Of The Dichotomy Of Real Right And Obligation

The dichotomy between the real rights and obligation refers to a series of systems and theories formed on the basis of the division of property rights into real rights and obligation in the traditional civil law of the continental law system.The dichotomy can be traced back to Roman law.Due to the distinction between "ius in rem" and "ius in personam",the distinction between res corporales and res incorporales,and the distinction between the chapters of "the same subject concentration and different subject separation",the subsistent dichotomy was accompanied.During the revival of Roman law,jurists created legal concepts such as "ius in re","ius ad rem" and "ius in personam".The distinction between "ius in rem" and "ius in personam sive creditum" gradually became the main classification of subjective rights.At the beginning of the 19 th century,Savigny distinguished real right and obligation as the right system to adjust different legal nexuses.In the end,the BGB in 1896 legislated the dichotomy.The dichotomy between the real right and the obligation was formally formed.Although the dichotomy is still in use today,it still has some defects:Firstly,the founder of the theory could not foresee the new property rights such as information property rights,and the dichotomy cannot protect the proper right from the risk of breach of contracts during the intermission.The thinking set of "dependence on the cognitive path of real things" and "monarch's landing of ownership" implied behind the dichotomy of "res corporales" and "absolute ownership" has caused cognitive perplexity.Secondly,the dichotomy makes it difficult to interpret and define the intermediate property right between the real right and obligation.It's also difficult to understand rights such as government franchise qualifications and social welfare benefit qualifications.In addition,there are fundamental differences in the rules of property rights between continental law and common.Last but not least,it is difficult to choose which characteristics of rights should be reformed when the dichotomy is faced with "obligation tendency of real right" and "real right tendency of obligation".There is a contradiction between the relativity of obligation and the inviolability of obligation derived from the inviolability of legal rights.Finally,"real right" and " obligation " are mistaken as "abstract concepts" will make the adjustment scope of the dichotomy more closed and narrow.The advanced experience of property rights practice and theory in common law can be used to solve problems above.Although there is no dichotomy of real rights and obligation in common law,the dual ownership and Hohfeld's "bundle of rights" theory can be used to disassemble the fixed collocation of elements or structures and reset the property right,and these above help update the dichotomy.The best alternative of remedying defects in the dichotomy is to reconstruct the property rights.Firstly,the only distinguish standard of the dichotomy is the distinction between domination and claim.Secondly,the adjustment category of the dichotomy should be accurately defined.For the atypical property rights,the reference skill and new rules can be used to make appropriate adjustment.Moreover,the natures of the property will be reorganized across the distinguish,and some types of interest will be regarded as the independent property rights,thus initially forming a property rights system pattern of "one main and many auxiliary".When the new types of property rights are mature enough,we can try to form a diversified property right system pattern of "multi-main and multi-auxiliary".