| Foreign scholars have been studying the theory of ownership without ownership for a long time.Gaius mentioned in the "Ladder of Law" that some items originally belonged to none but were occupied by someone.In the early study of the property,the famous British lawyer Mein analyzed the acquisition of preemption.He believed that preemption could act as a legal procedure,giving private ownership on unowned property.In the book "On Government",the British philosopher Locke wrote: Before the birth of human society,there existed large numbers of natural things.Legal norms formed in human society cannot put restrictions on the possession of these natural things.The law’s permission to share the things of nature in the public domain will inevitably bring about the protection of citizens’ personal property and other rights.Italian scientist Luo Pengfan believes that,based on the gift of God,we have what is necessary for human survival,such as fish in the river,deer in the forest,fruits in the trees,birds in the sky.It is human nature.At present,most countries or regions have clear regulations on ownership rules in their legal systems: Basically,there are two types of ownership rules.One belongs to the state,and the other is to determine ownership through preemption rights.There are only a few countries where all property rights are attributed to the state.In vast majority of countries or regions,ownership is clarified through preemption.However,the ownership of unowned property is determined by the dominant method varying from state to state.Countries around the world use active systems to determine ownership of unused property.Generally,there are three main modes: authoritarian mode,free mode and binary mode.However,though scholars in China ’s legal community are in the process of studying the ownership of non-property facilities,they have not fully established a proactive system.The current research is cautious: even if there is a theoretical perspective,these expressions often appear on the literature in the field of civil law and property law,and most of them belong to the study of the non-property object-led system.As the first way to obtain property,"preemption" existed in the era of hunting and gathering and has a long history in China.From a historical perspective,it was a profitable acquisition,which was later recognized by the law.But since the founding of People’sRepublic of China,the Chinese Civil Law has not stipulated the preemption system.The preemption system not only helps stabilize property rights relations and maintain social order,but also use resources effectively.Professor Liu Yunsheng of the School of Law of Guangzhou University believes that the preemption system’s primary functions are to provide a solution to property ownership and to confirm the legitimacy of private rights.As the laws and regulations in China do not have clear rules regarding the ownership of unowned objects,and because of the lack of a single,clear attribution rule,a series of property ownership disputes have been emerging in public life.One example is Sichuan Pengzhou’s "Sky Price Ebony Case".As a promising topic in the study of law,property rights have long been favored by scholars.Their efforts include the determination of the identification of unowned objects and the need to use existing property rights to resolve important property rights issues.The sky-high ebony case and other similar ones are only an introduction to understanding the current legal ownership disputes over the preemption of the subject.Based on the concept,legal nature,and constituent elements of the preemption system,studying the importance of establishing it in China can not only guide judicial judgments but also improve the relevant systems of the Property Law,and reduce expenditures on related resources.According to current situation,the preemption system of the legislative model is established from four aspects,and the establishment of the preemption system is specified.The legislative model,the scope of the preemption system,the restrictions and the legal effect,proposed the establishment of a legal system of preemption without ownership in China.Based on an in-depth study of China’s legal system of preemption rights,the determination of property ownership in China has specific reference significance for resolving disputes in real life.Besides,it is valuable for the establishment of the theoretical system related to the subjectless in China in the way of improving the corresponding theoretical system of things.From a practical point of view,the provisions of our current laws and regulations on this issue are based on the existence of objects,and the rules are complete and detailed.However,as the other two entities,there are no relevant laws and regulations,which is unreasonable and cannot help to solve the problem of ownership of unowned objects.The settlement of disputes must be based on law.Therefore,in this article,the study of the legalsystem of preemption has important practical significance for the prevention and resolution of social disputes.It will not only help to improve the legal system in the real sense,but also try to fill the legal gap.In the meantime,it helps to determine the relationship between property rights,so that to provide a legal basis in litigation. |
