The Moderation Of Numerus Clausus Principle:Reality,Comparation And Expectation

The moderation of numerus clausus principle and the numerus clausus principle are unified.They are two aspects of a thing,complementing each other and jointly safeguarding the order and freedom in the realm of real right law."Property Law of People's Republic of China" insists on rigorous numerus clausus,completely negative the rationality of property right moderation.As far as the theoretical significance is concerned,the theoretical debate on the numerus clausus principle in the theoretical circles of our country has not been settled yet.At present,the moderation of numerus clausus principle has become the mainstream doctrine in our country.As far as practical significance is concerned,the strict numerus clausus principle has brought difficulties to the system of real right law.On the one hand,the types of real right protected by the Property Law are insufficient in China,on the other hand,the rigidity of the types of real right in China is too strong.With the emergence of new rights,the drawbacks of numerus clausus principle gradually emerge.In Judicial Practice,the numerus clausus principle has been gradually broken through.Some new rights arising from social and economic development have been gradually recognized in judicial practice.Whether these new types of rights can be protected by law through legal mitigation of rights should be judged by whether they are contrary to the purpose of the Legalism of real rights and whether they can be publicized by appropriate means.Recently,there has been a view in the academic circles that the numerus clausus principle exists in Anglo-American law.Its essence is to prove that there is also the numerus clausus principle in Anglo-American law,so as to provide support for better adherence to the numerus clausus principle in our country.However,this view neglects the flexibility of the numerus clausus principle in the application of Anglo-American law,exaggerates its rigidity and ignores the difference between the numerus clausus principle in Anglo-American law and the numerus clausus principle in China in terms of "quality" and "quantity".In fact,in Anglo-American property legislation,there is no the numerus clausus principle in terms of property type or content.Through thebasic perspective of the development trend of the numerus clausus principle and the basic exploration of the moderation of numerus clausus principle,and through the investigation of the numerus clausus principle from the perspective of comparative law,puts forward a train of thought for reshaping the numerus clausus principle in the compilation of civil code.While adhering to the numerus clausus principle,supplemented by the moderation of numerus clausus principle,on the one hand,provides people with more types of choices on the type of property rights,on the other hand,creates a broader space for people to agree on the content of property rights,so that the realm of property law can meet the needs of economic transformation and further deepen the reform of economic system.