Basic concepts of property act theory the logic of distinction

Paper Keywords: Property Act; abstract principles; separation principle
Abstract: Property behavior is a hot topic of academic Research, this objective based on the position of Property Act, the cornerstone of the concept of the role of the system, from the Property Act, the principle of separation of Property Act, the abstract principles of behavior of the three property concept of manpower, of property within the hierarchy act theory, attempts to clarify the concept of Property Act carding system and give the full picture of the system, avoid misunderstandings arising out of context or inaccurate. while this property does not accept behavior that abstract principles of behavior of the system property can be set up.

For a long time, China's Property Act and the legal practitioners and scholars of Civil Law is very keen to discuss an important theoretical issue. Some people are arguing whether the recognition of property rights of Civil behavior, some people in the study whether the nature of Property Act legal acts, the fact that behavior, or both, there are those who recognized in the debate whether the Civil Right act of independence, non-sexual problems. This Article will not discuss such a complex problem, but realizing the 4 of the draft Property Law Review is issued in relation to the concept of property rights through acts that are necessary to the concept of the Theory of Property Act logical distinction between the Theory of Property Act to clarify the relationship between the internal level to develop logical analysis, to Property Act to build a scientific system of legal system.

First, the concept of Property Act
1. Definition
For any one concept of scientific knowledge, no doubt, are of great value. Lalun Ci (larenz) will be the cornerstone of the concept as a system. System formation, depends on the degree of abstraction of the concepts of different logical distinction, there is no clear legal concept, there can be a clear legal system, it can not be a clear legal thinking and legal reasoning. In short, the concept of building system, system science achievement.

As a concept, Property Act, in the production and use of the concept of the German Civil Code does not clearly defined. Generally speaking, the definition of the concept of Property Act more theoretical sense, as explained and discussed. Therefore, in rem the concept of the right to define or describe behavior As everyone mixed. I much prefer Tianshi Yong definition of Property Act, he first studied both German scholars expressed that they both basically the same view, much the same, and summarized as follows: "Property Property Law is the occurrence of acts of the legal effect of the legal acts on the so-called legal effect on property Law, namely, the right to directly change the state property: setting, transfer, change, repeal property. "Tianshi Yong then analyzes the concept of the Chinese scholars statements. Finally, Tian Shiyong under "is a species difference + the definition of" method, property acts defined as "occurring on the property Law the legal effect of the legal acts."
2. Property as one of the legal acts
Legal acts upon is "private, designed to express the meaning of certain legal effects. The reason why this effect may occur according to the law, because the actors hope its occurrence. Legal act of nature, meant to lead to the realization of the legal effect of the , is the legal system to recognize the meaning of the legal world by way of natural human desire to implement the law to judge behavior. "It is the meaning of the pArties by giving legal effect has occurred to achieve the effectiveness of private autonomy. arising from the concept of logical relations, Property is the legal effect of acts classified as a standard result, it is a deductive process, it means that property changes occurs as the core, the pArties desire to help the legal tools to achieve a direct effect of changes in property rights, the purpose of or the creation of property rights, or transfer of property, or change the property, or the repeal of property rights, as demonstrated the spirit of autonomy of private law.

In short, the Property Act is a legal behavior, but one is legal act embodies in the field of property law. So, as a legal act of Property Act, with reference to the classification of legal acts, can do the following resolution: (1) unilateral Property behavior, both Property Act (property deed, property contract); (2) Effective Property Act, property may be withdrawn behavior, the effectiveness of uncertain behavior of property, invalid property behavior.

3. Property changes as the subject of Property Act
Property Act to meet the legal requirements if the property changes can occur, but also place the pArties to the main legal property changes. But the legal property changes occur not limited to, changes in property rights can legal fact occurred, in addition to property behavior, there are various facts behavior, such as production, Lost Property, found objects buried, the first accounting and collection and other means.

Property Act is designed for the property changes, this behavior is different with the claims. Creditor claims means the occurrence of acts of law on the legal effect of such a legal act, for the credit and debt problems, it is legal action between the two sides as the main form of expression, the relationship between creditor debt, is entitled to the payment for a specific request. creditor does not act as if the contents of its benefits, not related to property changes, since the behavior has nothing with the property. If the payment reflects To act, when to use the proceeds of labor or materials for content, it has nothing to do with the property changes, which do not involve property rights act, only in the payment to transfer ownership of property or set a security interest in property involved in changes to the content Therefore, there is debt associated with behavior and the effectiveness of Property Act, the law applicable to the problem.

4. Elements
Legal regulation of life, to be abstracted from the facts of life as the number of elements to determine whether the facts constitute a legal fact of life standard, these elements that constitute the elements. Property Act of the constituent elements, that is, an act that if these elements have, you can behavior is considered to be property, and place the appropriate legal effect on property law.

Elements of theory will be divided into elements and the establishment of effective elements. The establishment of elements to solve the problem of the existence of legal acts, the effective element to address is whether the legal effect of the corresponding law occurred, the former belongs to the act itself to determine the facts and does not involve legal effects, the latter is a pre-existing law the legal effect of whether the behavior of a corresponding value judgments. This conceptual distinction is made necessary, it is controversial. distinction between elements and the establishment of effective elements of very limited practical significance. So to determine the legal effect of an act in terms of whether there can not be confined to whether the element or the establishment of effective elements of the debate, only the behavior of all the constituent elements sufficient, to take effect. Therefore, we need only examine the effectiveness of Property Act factors can be. these factors, one property changes the meaning of that element, and the other is the publicity element (in the real estate for the delivery of immovable property is registered), and only found these two elements to the legal effect of property changes occurs.

5. Manifestations
(1) The separate existence of the Property Act
This case, the independent existence of Property Act, any relationship with the creditor behavior. Property claims based on acts of misconduct occurred, therefore, will not debate the independence of Property Act (even non-existent problem without Cause) . Whether the Property Act that the effect of property changes, only the property under the act itself to determine the composition of elements. separate existence of the Property Act, for example, ownership of the abandoned (abandoned property), land rights, easements and other usufructuary right of the setting.

(2) and the behavior of the coexistence of Property Act claims
Behavior co-exist with the property claims act, according to the distinction between time can be divided into: side by side with the behavior of property claims act claims based on conduct occurring earlier in the post of Property Act (prior claims behavior, physical rights violations in the post). The former, such as the general public to buy gloves, buy a cucumber instant cash transactions, which ordered Boeing aircraft such as the National and other large long-term transactions.

Behavior co-exist with the property claims act, according to two different degrees of relevance, but also can be divided into: ① a security interest in setting, change the behavior of such property. Such acts of property relations between behavior and claims, that the law has provisions It can not happen on the independence of Property Act, no problem because of the controversy. because of such circumstances it is clear the independence of Property Act, in pArticular, provided by a third party when the mortgage or pledge. to Property Act and effectiveness of related claims in terms of behavior, generally speaking, the existence of security interests in order to claim relationship continues to exist as a precondition. such as Article 52 of the Guarantee Law provides that "the mortgage and the secured claim they exist, eliminate debt, the mortgagee destroy. "Article 74 provides that" the quality of its secured claim the right to exist, eliminate debt, the pledge also eliminated. "Article 88 pairs lien There are similar provisions. ② exist in sale, gift, reciprocity of these transactions relations in the Property Act. These transactions generally consists of two phases between, first, the establishment of contractual relations, followed by performance of the contract. these two stages are separable, even in the cold number-crunching spot real-time transaction , in the concept also can be distinguished. In the sale of the legal structure of these transactions analysis, the focus of debate can be roughly summarized as two questions: First, what the legal effect of contract for the sale, is the direct result of ownership the effect of changes in, or only have the effect of debt and the transfer of ownership arising as a sales contract payment obligations? transfer of ownership at what time, on what basis the transfer? Second, if there is contract for the sale and transfer of ownership for behavior from each other, then what is the relationship between the two, the latter effect is dependent on the former, that the former is invalid or revoked, this does not occur whether the intended consequences of the legal effect of which would harm? former question Property Act deals with the principle of separation theory, that the independence of Property Act, the latter issue involves the property rights theory of the abstract principles of behavior, that Real Rights issues. the law of such transactions structural analysis and design, due to different national legislation and law presents a different model. on the sale of these transactions, adoption of the independence of Property Act, without because of system design characteristics of the German law, French law no This theory, while the Swiss were adopted compromise, recognition of independence, but does not recognize without cause, may be called the third option.

As the opening as described, this task is to conduct German law theory of property rights on the center, to clarify the concept, carding system, in the process of legal training in logical thinking, learning, the concept of Civil law, the relationship between concepts to find a legal system method for the main purpose is not to Lunzheng legislation of German law better than the other. In fact, a system of social isolation is generally not to adjust the role of real life, and related systems shall be as the support, a system is only set one group of rules and norms to systematic manner to achieve the value inherent in the system specification. German law of "abstract property contract theory" is no exception.

Second, the principle of separation of Property Act
1. Concept
Principle of separation of Property Act, otherwise known as the principle of distinction, that is, the independence of Property Act, refers to the property in the event of a change, as the basis for property changes due to the credit and debt laws and the fact that property changes are independent changes in basic relationships and property rights exist as two legal facts. the sale of an example, the sales contract is a debt behavior occurs only on the legal effect of the law of obligations, the parties only have the effect of mutual obligations, the buyer is only entitled to request the seller transfer of ownership of the subject matter of claims of ownership can take place not immediately available. Buyer to obtain ownership, pending completion of other legal acts both sides - Property behavior. through the transfer of property ownership of the effect of behavior.

Behavior and behavior change in the basis of property distinction is rooted in the distinction between property rights and claims. This distinction is based on the legal effect and meaning and relief on the difference. Theories of the origin for the Property Act, according to the views of scholars, " Germany can be traced to the Middle Ages, "common law." As a judicial reference in its <<Practical Legal Series>> raised, the effective transfer of ownership should have two conditions: First, "name" and the other is the "form" . so-called "name", that the parties to transfer ownership of the legal relationship established, such as the "sale", etc., that the reasons for transfer of ownership. and "form" is a matter of "delivery" or alternative delivery behavior . can be seen, this book has a clear distinction between the reasons for transfer of ownership and ownership transfer are two different facts. Then, it seems generally agreed that property contract is "the discovery of a scholar - his love of the pursuit of academic structure There will be integrated as a source of law no legal loopholes in the whole of the special abilities. He knew the course of this capacity in the cast, in the system in the process of achieving, you must remove those that are not consistent with the overall source of law. The scholar that Savigny, in terms of his legal basis for the creation of informal details of the doctrine. This doctrine of the German people believe there is real right contract. "However, Jaco Jacobs in the same article that" will create a property contract theory credit for the practice of Savigny is not the correct one. In the process of establishing property rights in contract theory, in fact, can be said that Hugo 'against the tide of the times' to complete a major work, and Savigny recognized in Hugo After that time the trend of development of the impasse, a new direction for the trend to pave the way. If someone saw this, then we would not think that property should be inspected before the contract Hugo theory, it may be from the start before Savigny investigation, but never before from the beginning Hugo mouth "Since then, widespread adoption of legal acts in Germany, the concept of legal Research more mature cases, Hugo has opened up but did not ultimately improve the theory based on the German jurist Javier Nigeria continues to make accurate thinking, put forward the concept of Property Act. Savigny's Property Act after the concept was put forward by the attention, is the common law between the number of academics and practical acceptance. Savigny later scholars, such as the S & P Hertha, temperature Shadow Freud, Daienboge etc., on the need for transfer of ownership means that the question of property law, the basic inherited Savigny's view. The theory was eventually <"German Civil Code>> legislators accepted.

2. Meaning
Principle of separation means, based on changes in behavior and property behavior independent of each other, that is, buying and selling behavior, to complete the transfer of ownership of property, going through the role of the two legal actions, first act of a creditor, the latter is a property behavior. This distinction, in theory, the performance of the value of rigorous logic and the clear fact of life especially of the species traded, the trading of future legal relations materials have a strong explanatory power, such as the object of the relationship between debt - subject matter unclear circumstances, the burden of debt on the payment behavior of real-time performance will definitely not be completed successfully because the total going to perform, when the benefits clearly point to something, the two sides agreed on transfer of ownership of the property may only be . Therefore, in the matter of the species and the future sale of the cases, the property transfer and debt must act at the same time is difficult, then, the "Property Act do not want independence is not so vertical is not the case when made in the transfer of property Consensus is usually not difficult to explore identified, we adopt the principle of separation no stifling. "On the other hand, entered into a contract for the sale is still not enough to just make a direct transfer of ownership of property law effect, to achieve this effect, still need another independent behavior - Property Act as a legal act. on the changes in the ownership of the need to engage in another behavior, apparently with the contract for the sale of phase separation behavior of the claims. In addition, the principle of separation in practical effect, the following two positive Significance: (1) on the basis of changes in property relations, that is for the sale, must act in accordance with its elements of the claim to be judged, not as property changes to determine whether the achievement as the standard. property changes did not occur, probably due to performance can not and the reason may be unwilling to meet, but only as a basis for relations between the effectiveness of this contract for the sale should not be denied. otherwise, will be unable to pursue the seller for breach of contract, the buyer can not get relief. because the application of remedies for breach is the premise of the contract effective. (2) changes on the property to conduct their own property to determine the elements. contract for the sale valid, does not mean transfer of ownership, to achieve the transfer of property rights still need to act. whether the existence rights violations, mainly to examine whether there are changes in property rights agreement, whether the property changes of publicity, and publicity of Real property changes as the achievements of the completion point in time - to complete publicity, property rights transfer.

Independent Property Act, an increase of the meaning of the Real Right to again determine the possibility of conduct of the parties to expand the free space. But it also expands the possibility of the formation of economic activity, which allows parties to conduct and property claims act provides for different conditions as possible. From an economic point of view, an independent Property Act, by directing resources towards the most effective way to promote the output of the maximization of social and public interests, which greatly protect the interests of individual freedom and social growth. Links to Research Papers Download http://www.hi138.com three abstract principles of Property Act
1. Concept
Abstract principles of Property Act, that the principle of property without Cause, is the property of their effect on behavior independent of its base (reason) behavior, not to the basis (reason) acts effectively as a precondition. That is the basis of (reason) behavior is declared invalid, revoked not lead to changes in the performance of property act, of course invalid. In short, the effectiveness of Property Act does not act for reasons (as will the relationship between the right to act based on) the left and right, though not the establishment of debt behavior, not students effect, revoked or invalid property act does not be affected, still the legal effect of property changes occurs.

Abstract principle of the separation principle is a further extension. It is because of behavior and property claims act has separated, it may further act to give property claims act does not rely on an independent effect. No no separation of abstract principles. However, certain separation principle does not necessarily lead to certain abstract principles. the principle of separation logic and abstract principles of relations between the level of progression, not necessarily logical derivation, it can exist separately. if not recognized abstract principle, only recognized the principle of separation, as the Swiss legislation of the same as that between the creditor and effective as a prerequisite for effective property changes, but also feasible.

Abstract principle is based on the principle of separation of logical progression, to which we can come up from the origin of property rights theory to understand behavior. Savigny in his <"Modern Roman Law system>> wrote:" The private contract is the most complex and most common, in all legal systems can generate contracts, ... .... First, the law in the debt, they are generating the most basic source debt, people call these leases as debt covenants. In addition they are also in the Property Law also widely used with. delivery is a real contract, because it has all the characteristics of the concept of contract, which includes the parties of possession and ownership transfer of the meaning of that ... only that the meaning itself as a complete Delivery is not enough, so must be added to obtain actual possession of objects as its external behavior, .... For example a house sale, people used to think it is the law of obligations on the sale, which of course is; people had forgotten , and the subsequent delivery is a contract, and any sale is a completely different contract, indeed, only through it can deal. "Savigny which has a big step forward, he stressed," Property contract In its legal effect and legal reasons for the results of their behavior must be the effectiveness of phase separation, and from 'abstract' out. even if a contract for the sale of objects to perform the delivery of one party, while the other party is a gift that is obtained, the parties error can not deny that they concluded the validity of property deeds, can not deny the transfer of ownership thus born. 'a delivery is completely wrong from the effective delivery', however, because the delivery people can lose ownership of the unjust enrichment claim filed to request the return of their property. "
Abstract principles characteristic of German law. Although this theory of German civil law and policy scholars value and the corresponding set of legal norms there is always controversy, but he, as an important German civil law, but no representative of the system may be denied . compilers of the German Civil Code and, later, their supporters, from the theoretical law, legal system and the perspective of legal practice have to be high on the abstract evaluation of property act, they think, with abstract principles, can make the Property Act ( disposition) is not the basis relied on to produce (cause) the effectiveness of actions to protect and improve the efficiency of the transaction transaction security, and transaction security is the most basic value of the field of private law. in accordance with the theory of abstract principles of Property Act , to obtain posterior position achieved in the past when things were made there, do not care about the transaction before the hand-made subject matter of the claims based on whether the contract is still valid, as long as the prior ownership of the property to obtain a valid thing is the right to act under (and this awareness can often publicized by the appearance of a property acquired). In short, save the abstract principles of flip transactions to verify the validity of the previous investigation, to obtain the prior ownership of the foundation is based Invalid behavior no impact on its disposition. can be seen, the abstract principle of property transactions can benefit of a third person effective protection, transaction security can be fully guaranteed, the legal transaction will therefore increase the efficiency of nature.

Clear from the abstract principles of the strengths of this thinking is the system of legal clarity, rigor, and the complete protection of security of transactions on the - off the results of the effectiveness of behavior associated with the underlying behavior. Of course, its shortcomings, K · Heights Wiget, H · Klotz has pointed out that "'the abstract property deeds' theory, and around which differences of opinion emerged that the German law method of legal doctrine in the abstract laws of real life from the extraction of a living legal system and legal concepts and make them the facts and the parties completely out of ideas and knowledge of how powerful the tendency is to ... ... that is the property abstract contract, so in principle, act to establish the validity of the claims, this is a problem. In reality, do not exist to accept the basis of this theory, it is negligent in life; if to say, in any case the theory can lead to a correct conclusion, I am afraid we will be a headache. "K · Zweigert, H · Klotz also pointed out "method created by the abstract concept of speculative nature, though not so obvious nor so close to life, but it can help large and complex real-life relationship between technology induction by law to adjust in order to establish levels clear legal system can be controlled. "ways of thinking can be seen that the law has strengths but also has its obvious weaknesses, therefore, to be sure without cause, you have to design the appropriate system to eliminate the drawbacks because of its advantages . And in the system of the German civil law system is to be addressed with relevant, for example, for a malicious third party to obtain ownership of the seller is not able to issue equity, the German law against any third party claims system, which the seller can be invoked <"German Civil Code>> Section 826" means contrary to good morals to the damage inflicted on the people, the victim bears the obligation of damages, "the provisions of the third party claims filed against the appeal. As for Unjust Enrichment is really not fair to the seller and the property acquired in good faith can replace the problem without Cause, then subject to further discussion. Property Act to certain abstract principles of scholars, who after detailed feasibility studies , have made this question a negative answer.

Therefore, the Real Property Act behavioral theory of abstract principle is not a necessary component is not independent because of the strengthening and development, but not necessarily inferring. As mentioned earlier, does not recognize the abstract principle, only recognized separation principle, as Ruishi Li legislation, that is effective in Debt property changes as a valid premise, but also feasible. Meanwhile, non-sexual question, as Mr. Xie Huaishi pointed out that with no result actions must be made by law provisions, the law could require certain behavior is not due to the property, or even to require certain behavior is not due to the claims. "behavior is not due to acts of property" is not enough to say exactly.

2. Meaning
In recognition of the principle of separation is only the case of Property Act claims act shall be valid and effective for the premise that the Property Act claims act effectively is a special effect elements. Thus, as a basis for the relationship between behavior and claims the property as a result of acts effectiveness of combination showed the following states: (1) claims is effective, efficient Property Act; (2) the right to conduct an effective speech, property rights act is invalid; (3) claims null and void, property invalid.

In the case of recognition of abstract principles, property rights claims not to act effectively act effectively as the premise, property relations between behavior abstracted from the underlying meter, cut off associated with the debt behavior, effectiveness and do not implicated. It may reflect the effect of combinations are: (1) claim is effective, efficient Property Act; (2) claim is effective, property rights act is invalid; (3) the claims as invalid, null and void property; (4) claims null and void, effective Property Act.

In summary, the above is to follow a logical analysis of the path, on the basis of property act theory has made a logical analysis of the concept of construction work, the purpose of the work is to use scientific methods to existing and should be the did not yet have the legal concepts and rules in a systematic form and construction, the rational design of the system, construct a scientific and rational system of systems. Links http://www.hi138.com Research Papers Download