Property Act should be used for the theory of

[Abstract] property Behavior Theory creation of Civil Law from Germany, has been controversial. This paper tries to act theory property theory of content, practical actions to demonstrate that property rights theory of irreplaceable value, and from the country's basic national conditions and discusses the theory of Property Act should be adopted.

[Paper Keywords] Property Act, property rights behavior, legislative options
Property Act on the theory of community in our country, has not been reached. Most scholars negative attitude, or even that the concept of Property Act is a highly abstract concept, does not exist, some scholars advocate recognition of the independence of Property Act , but then the theory of property without Cause are skeptical, there are many scholars believe that the theory of Property Act does not weaken it long after the vitality of indemnity, the theory of property rights theory of reference for the construction of equally . The author's analysis of property rights theory that behavior. Real property behavioral change theory as a theory, has great practical significance, theory of Property Act should be used.

First, the content of property rights theory of behavior theory
The concept of Property Act proposed by the German jurist Savigny. Savigny will be delivered as an independent contract, founded upon the concept of Property Act developed by the jurists formed the theory of Property Act. The core of the theory, whether the main result of the Civil What causes the changes in property rights, they said on the meaning of property changes are an independent legal action, its effectiveness and results of their behavior is not associated with the cause. From the above idea, the German jurist General Theory of Property Act, summarized as the following three aspects, or three important principles:
1. Principle of distinction. That in the event of changes in property rights, property and the property changes cause changes in the results of two legal facts as they were based on the establishment of entry into force of different legal basis. German jurists believe that the establishment of contract for the sale and ownership of the entry into force of the distinction between the transfer is not man-made fiction, but an objective fact. No matter what the reason property changes due to changes in the establishment and is not a property legal fact: but two distinguished legal fact. in the cause of behavior, the pArties enjoy the right to claim Law, and assume the obligations on the debt Law: acts in the results, the pArties complete the property changes, making the exclusive property can occur consequences. In German Law, the reasons for the request to produce the right behavior is the burden of behavior, property changes can occur is the result of acts of disposition.

2. The principle of the form. That is independent of changes in property rights must be based on an objective means to identify the principles to be determined. The general said that under German Law, property rights independent of the meaning of this performance is the best way delivery of real and personal property registration. But because the property is an objective means of independent existence, so in addition to the registration and delivery may also have independent property rights mean. For example, a registration of real estate transactions, though not, but if the seller of land use right certificate to the other pArty, this behavior can be expressed itself on the seller to deliver title to the other pArty's meaning. Since this idea can be established by law. Ownership has been legally determined to be transferred to the other pArty. But. Movable property changes the meaning of such acts can only be delivered to that, in addition to delivery, the law does not recognize the meaning of the other table knife.

3. The principle of non-sexual. Also known as an abstract principle, refers to as the disposition of the property acts. Do not ask whether the burden on an effective act into force on their own. Because acts can not lead to rescission or cancellation of the performance of acts of transfer of property is invalid or revoked. As Savigny said: Property Act should be used as The reason for the phase separation behavior of the claims act. Behavior will cause the "abstract" out of the Real Rights. If a contract for the sale of objects to perform one of the parties and delivered to the other party is a gift that is obtained, the parties of the error can not deny the property they concluded validity of the contract. Can not deny ownership of the resulting transfer of the results. In short, "a delivery from the error is valid." Real change is the result of property means that, if the meaning is not on the property law revoked. Transfer of property has occurred, only with claims of unjust enrichment theory to solve the flaws on the meaning of the consequences of that.

Theory of Property Act by the three parts of a complete system of systems, the interaction between them, closely linked and inseparable. Only three can play together the system of property rights theory of functional behavior.

Second, the practical significance of Property Act
1. Property transactions act theory is conducive to maintaining order and achieving social justice. Some scholars pointed out that in the contract of sale, deliver the subject matter, if the contract of sale is not established, invalid, or revoked, according to action theory does not recognize the property and no because of legislative concepts. Does not occur in the transfer of ownership of the object. And then transferred to the buyer if the third person, are not entitled to sanctions. Based on the "no one shall be greater than their own rights to the others," the Roman law principles, and the third Even if people can not get good title to the subject matter. On the contrary. Behavior and recognition of property rights in accordance with the principle of non-legislative cases because of, the third person able to obtain title to the subject matter, and thus help to protect the security and maintenance of third party transaction security interests. Should be recognized, these scholars have been properly saw the recognition of behavior theory in the maintenance of property transaction security contributions.

However. Against the theory of property act theory scholars believe that the biggest flaw is that seriously damaged the interests of the seller, against the Civil law principle of equity. In their view, according to property behavior, even without the establishment of sale and purchase agreement, invalid, or revocation of , no impact on the Property Act, the buyer still get ownership of an object. seller only in accordance with the provisions of request for return of unjust enrichment. The status of the owner of the subject matter reduced to an ordinary creditor, is not conducive to protecting the interests of the seller. With real property act theory would seriously damage the interests of the seller? We can not set up the contract, respectively, invalid or revoked case analysis. Bond is formed, there is no contract for delivery in accordance with the circumstances, the contract null and void if a party to contract for the sale for the incapacitated person, to make a TV contract for the sale, and completed the delivery. As a party to the contract of sale for the incapacitated person Therefore, contract for the sale invalid. also in accordance with legal acts of constituent elements, one the meaning of lack of capacity, it acts as a delivery should also be invalid. when the party is a limited capacity for Civil conduct, the analysis of empathy with them. In this paper, would like to emphasized that the property acts as a legal act of a subordinate concept. The establishment of effective legal acts must also be consistent whether or not the establishment and effective elements. Because of this, those who believe that actions by property seller will seriously damage the interests of theoretical concern is unnecessary.

Theory of Property Act does not in practice not only damages the interests of the seller, but with particular emphasis on protecting the interests of a third party. Protect the interests of a third person, is to maintain normal relations between the Civil circulation, the development of the internal needs of the market economy. Whether it is endorsed Theory of Property Act of scholars, or scholars who oppose the theory of Property Act, will not deny the theory of Property Act to protect the positive impact of the third person. According to Theory of Property Act established the principle of Public Credit, by means of registration of real estate and possession of movable property delivered to the publicity effect of the changes have credibility. Establishment of a sound protection of third party rules. This is also in line with the contemporary developed market economies of the transaction security requirements.

2, the use of property without due to behavior theory and the principle of legal relations is conducive to clarity. Facilitate the application of law and social cost savings. According to Property Act Theory. Reality there are two different transaction contract, a debt contract between the parties, the other is real right contract. Two completely separate contract, the concept of clear and accurate positioning. The effect of each legal act is very easy to judge, legal help the correct application. For example: antagonism signed a contract for the sale of a car. After the signing of a contract, the car delivered to B, B has paid the price of gold under the contract, the parties have agreed on a certain date to the car registration transfer transaction management agency procedures. To transfer ownership of the car the night before registration, car was Pirates, so have the number of disputes. If the theory of the case in accordance with the negative view of Property Act This situation may occur: first, under the contract for the sale of unregistered vehicles, the sales contract signed between the invalid and B, so a price of gold should be returned to the B. and secondly because the car B will be a loss. So the relationship between debt took place, should bear the liability. In this way, according to Property Act would have a very simple theory of the case get very complicated. In accordance with the Theory of Property Act trial, B was established between the contract for the sale and entry into force of the car. Contract between the property and B have also been set up, and completed the delivery, the contract also in force. B only in the scope of their responsibility, and thus significant savings in social costs. Visible, clear property rights in the legal relationship between behavior theory, saving society the significance of the cost significantly. reposted elsewhere in the Research Papers Download http://www.hi138.com three, from China's basic national conditions, China's Property Rights Theory of Property Act legislation should be adopted
From the above analysis we can see on the property act theory from practice is conducive to maintaining transaction order and achieving social justice. But also to clarify the legal relationship. Social cost savings. So, from an objective property act theory is that the current economic development, higher demands on the legal rules reflect the concentration. And to look at China's basic national conditions. After a long exploration. Of the market economy as the main form of optimal allocation of resources, the market in allocating resources play a leading role, the market developed to promote the participation of a number of market players, so the behavior of our theory of the existence of the conditions of use of property.

1. Theory of Property Act adopted, will help standardize the trading behavior of market players
Establishment of a socialist market economy. Must establish a system of active market players and healthy market operation mechanism. Property law that the order to establish a good flow of property for the purpose of providing a reliable basis, must respond to regulate the trading behavior of market players to play its due role, the most important is to develop and strengthen market awareness of the main adherence to the laws of contract. In the operation of the private economy to the credibility of the long-term survival of the operators have set up strict compliance awareness of the capitalist countries. Even if the elements of doctrine to register property legislation does show the nature and feasibility, but it does not suit our national conditions. We want to develop the property law, though not it alone the task of sanctions violations, "Goldenthal mountain to a small world", but it will not allow violators acts recklessly. This requires the introduction of property rights in the Property Law Act Theory, the behavior and property claims behavior to achieve effective separation of act is invalid in the property when the creditor to give credit act law in the results.

2. Property Act uses the theory of localization is conducive to carry forward our tradition of legal culture
In 1929, when China adopted the Civil Code in the development of German law on the theory of Property Act, and in Taiwan, China has maintained ever since. Section 758 of the Act provides that: "real property obtained by legal acts, the establishment, loss, and changes, the non-registered do not take effect. "legal acts mentioned in this Article means that in terms of Property Act. Article 761, paragraph 1:" movable property of alienation, non-delivery of the movable property does not take effect. but under the makes possession of movable property, as at the time so with the agreement, that is not effective. "to whom this agreement also means in terms of Property Act. Kuomintang <<Six Laws>> in the mainland for the new China Central People's Government in the early days expressly repealed, the repeal of the law and can not be equated to the abolition of legal culture. legal culture is an integral part of culture. a country's culture has a tradition cut off, there is irresistible inheritance. The same can not be because of a legal culture paper explicitly to be repealed. Therefore, in the development of property law, the law must take into account their cultural traditions, can not but consider the theory of Property Act.

3. Theory of Property Act adopted, does not exist with our current difficulties in the law difficult to reconcile
Property changes on the provisions of existing laws to the following specifications: <<Civil Law "Article 72," "Land Management Law"> Article 10, "" Urban Real Estate Administration Law "Article 60, section 61 , "<Guarantee Law"> Article 41, Article 76. Overview of the provisions of the law can be clearly seen: the establishment and transfer of movable property possession must be delivered, and the act take effect from the transfer of possession: the establishment and transfer of real property must be registered, and act with effect from the time of registration. Here White plays on the transfer of movable and immovable property with effect from the time of registration provisions in force, it is Real Property Act Theory in the principle of publicity for the contents of the expression. on the need to (should) deliver possession and must be (should be) the registration requirement law is precisely the obligation debt, which reflects the principle of separation of property act theory in the content, if not for such an interpretation, the legal burden for this requirement is entirely due to changes in the sense of property, the law only requires movable and immovable property in mind to deliver effective entry into force is sufficient. of legal theory and practice there is no reason for a long time to deliver possession of movable and immovable property should be registered as a debt should be the effect of law to understand, because the theory of Property Act long-term interruption of it in China, and legislators have consciously or unconsciously, the theory and application of specific legal norms embodied being. Although the understanding of this specification is not uniform, but should be taken seriously enough. Thus we can easily conclude that recognition of property rights act theory deals only with the interpretation of existing law there is not conflict with existing laws.

In summary, from China's national conditions, China's social, political, economic and cultural realities of the Theory of Property Act provides the introduction and implementation of the premise and condition, and property act theory is highly developed market economy and the establishment of precise , detailed, secure and open legal system requirements, so China should be adopted in future legislation Right Behavior. Links http://www.hi138.com Research Papers Download