China's Property Law provides for the principle of distinction between the theory and the Property Act

Abstract: <<Property Law "> Article 15 of the principle of distinction is the whole theory and practice of Law has specific rules of major significance, one of the provisions of this Article can be in-depth understanding of the profound grasp of the legal value of their contained . Property Act is a legal act according to their classification of the legal effect of the inevitable result of logic, "<Property Law"> under the principle of distinction in the show that China has recognized the independence of Property Act, but did not recognize the property rights act without reason, that is the whole theory of Property Act Civil Law system in China has not yet been completely established.

Paper Keywords: principle of distinction: Right Behavior Theory: Relationship
I. Theory of Property Act to correct misconceptions
Over the years, scholars of Civil behavior theory of property rights is one of the most controversial issue, whether our Civil Law has acknowledged the existence of Property Act. As of 2007 <<Property Law "promulgated in more controversy on this issue large. In fact, raised the issue itself is a problem. Although our existing Civil legislation does not appear in "Property Act" of such words, but we can not deny our Civil law to deny the existence of Property Act. As the claims act, as the existing civil legislation also does not indicate the reference to claims act, but whether in the civil law theory and in judicial practice, have acknowledged the existence of claims act. So, this problem into Civil Law in China behavior of the existence of property rights theory, that is whether there is a theory of civil behavior and the relative claims that the property has an independent existence of acts of meaning. In this regard, some scholars believe that as long as our civil law also recognizes the claims, property , family rights and other basic civil rights division of property for the same act must be recognized that the objective existence of a legal act.

Because as a private, aims to draw the meaning of certain legal effects, said the purpose of people engaged in legal acts may be varied, since there are pArticular to specific people and between people to occur, changes in credit and debt elimination for the purpose of claims act, there is a matter of course to set, change and destroy property for the purpose of the act, which property acts. In this regard, our well-known scholar Professor Su Yongqin Taiwan, once said, "When the civil legal acts such decision by a high degree of abstract concept, not the sale, lease so moderate and life in the abstract but relatively close to the concept of the concept of transaction, to implement the concept of autonomy of private law, it was decided to the contrary, the nature of the claim request, with the absolute nature of the dominant property segment, the life of a transaction may be dismantling the legal relationship between a number of acts had been inevitable. in the sale and purchase under this system, both property and money only to each other the negative transfer agreement obligations, rather than the transfer of control over the agreement itself, the sale of the buyer of the property transfer can only create credit, and the seller claims the money transfer, but can not create the effect of property transfer can be that is a logical result. "So, property is a legal act according to their classification of the legal effect of the inevitable result of logic. If denied property rights act, then people's intention to set up the basis of the legal system , and the whole logic of the civil law system will be chaos.

Second, the definition of the principle of distinction and in recognition of the Property Law
Orthodoxy of the "principle of distinction" from the German literature "Trermtmgsgrundsatz" and "Trermungsprinzip", there is no difference between the two, but its Chinese title of scholars are different. If Tianshi Yong teacher called it "separation principle" to highlight the Property Act with a concept that separates Sun Xianzhong teacher that "the principle of distinction," the translation than in the "separation principle" is more appropriate, proposed in the previous statement, and Mr. Shi Shangkuan will be referred to as "the independence of Property Act sex. "Nevertheless, the Sun Xianzhong teacher" principle of distinction, "the statement still got the support of most scholars, the paper that use of such statements.

Scholar in the specific meaning of the principle of distinction are two kinds of understanding: First, isolated acts of property claims, said behavior. If Mr. Su Yongqin of Taiwan scholars pointed out that "the so-called independence, referring to the legal effect of changes in place the legal property independent of changes in behavior as a legal basis exists, the principle of this legislation, also known as 'separatists', and to act at the same time as the property changes for a reason and a direct effect of a change in the 'consensual doctrine' is in opposition. "according to this understanding, then have to acknowledge the existence of property rights independent of the cause of behavior, in Germany that can make this understandable, and second, separation of cause and effect changes in property rights, said that claims that the property changes as a result of the conduct, claims act property changes as a reason, so you can not recognize the existence of an independent Property Act. But whether in our country to be specified in the Property Law of Property Act is not an independent unified view.

Right under the above act theory we correct the misunderstanding can be found in our Property Law Property Act on the objective existence, as Mr. Su Yongqin said, recognized the independence of Property Act, which made the principle of distinction can be The first is to understand .2007's <<Property Law "> order expressly provides for the principle of distinction, making it the Property Law ~ basic specifications. full sense of the principle of distinction, should include 14 and 15 of the Ordinance. thing the right to change the effective time of entry into force of the conditions and causes of behavior and the effective time and conditions to be distinguished in this, but for failing to register the property change is not effective, the effect on the cause of behavior would affect the key issue is the principle of distinction, l5 from the provisions of paragraph 2, can be seen, the contract entered into force and effect of changes in property has been completely separate, embodies the principle of distinction is the legislative intent.

Third, the Property Act Theory and the relationship between the principle of distinction
(A) the recognition of property rights act theory necessarily recognize the principle of distinction
The answer is yes. Right act theory is rich in content, which includes the Real Right to claim the distinction between behavior and the principle of Property Act, property rights can be said that the principles of behavior theory laid the foundation for the distinction. So, if a country's legislators to adopt property rights if you decide to select the behavior, then it means that while the adoption of the behavior of property claims the distinction between behavior and the principle of the independence of the Property Act. Connotation of the principle of distinction is the Right Change reason to distinguish acts of behavior and property rights, the effect of property changes behavior because the effectiveness of Property Act in the distinction between the behavior of the reasons for the effect of changes in property rights and right to distinguish the effects of behavior.

(B) whether recognition of the principle of distinction must be recognized theory of Property Act
Theory of Property Act currently scholars deny that the acts of recognition of property claims the distinction between behavior and the principle of the independence of the Property Act to establish property rights is bound to act without cause (abstract principles) of such a system, if for independence and not without cause, the system is pointless. while many scholars in the critical property act, not only for acts of sexual property that has been refuted since without cause, the independence is not due to services, so there is no need for the independence of the refutation will be drained of its own. I think this view is not appropriate. creditors Property behavior and behavior are two different legal acts, not necessarily linked together, they are independent of each other in an objective, therefore, refute the behavior of thing without cause, does not necessarily refute the independence of Property Act. As Professor Su Yongqin said, "not because of the independence and do not in fact between any system of logic - but not because of property act independently, electricity can be independent and because of, so if not for the view that a judicial interpretation of legislative policy or improper, it may be this to make a fresh stArt, if not wrong because of the principle of to deny the independence of Property Act, but made a logical error irrelevant, or at least unworthy of the over-reaction. "
The burden of behavior and disposition of the district is divided into basic, resulting in the distinction between credit and right, so in the "" German Civil Code>> on the strict distinction between property rights and claims. Civil Law System in China to <"German Civil Code>> modeled on the strict distinction between the property and also claims that property rights should be a matter of course recognize the distinction between behavior and claims behavior, and our property law also expressly provides for property changes because changes in behavior and the results of the principle of distinction, property rights can be China's property law that recognizes the independence of Property Act but did not recognize their non-sexual. Therefore, the recognition of the principle of distinction does not imply recognition of property rights must act theory, the principle of distinction (the independence of Property Act) is Real pArt of behavior theory.

Fourth, China's current legislation to recognize Real Property Act Theory
<<Property Law "> announced, the property law to recognize the real right behavior, academic and judicial practice in civil law have different opinions, the Supreme Court on February 4, 2008 release <<Supreme Court on the issuance of ( civil cause of action provides "notice>" (Law Development (2008) l1 No.) The third point on the civil cause of action choreography Several Issues on the first 3 dots on the cause of action and contract disputes, property disputes, the question of cause of action applicable to the provisions of : "<<a civil cause of action requirement" in accordance with the Right Change to distinguish cause and effect principle, the reason for the change due to property relations, that is the nature of the contractual relations claims disputes, should be part of the cause of action for claims disputes, such as property guarantee the establishment of relations in the cause of contract disputes, property transfer because the contract dispute relations. For established for property, ownership, effectiveness, use, income and other property relations disputes, property disputes should be part of the cause of action for such as the security interest disputes. In this regard, the people's court should be based on the legal relationship between the parties appeal the nature of competition, to identify the legal relationship property changes are related to the reasons for the result of changes in relations between property rights, or to properly determine the cause of action. "Although this provision of guidance related activities play a role in judicial practice, but the recognition of property rights a matter of act theory does not make a direct answer.

Debate on this issue has a long history in the civil law scholars, most scholars believe that in our current legislation does not exist in Real Property Act, but I think that with the promulgation of property law, China has gradually deepened the Property Act understanding, although not yet in the Property Law of Property Act clearly expressed, but has some recognition of the existence of a Theory of Property Act. which I wish to explain the following three aspects: Links to Research Papers Download http:// www.hi138.com (a) point of view from the context
Legislation related to property rights in China, does not directly use any place, "Property Act", "Property contract" concept, not explicitly affirmed the existence of Property Act, but also to find some indirect evidence. For example, according < <Property Law "> Article 25 of the" easy delivery "means the provision, establishment and transfer of movable property before the right person has legally possessed the chattel, the property since the commencement of legal acts take effect. here's" legal " Real estate buyer and the seller refers to migration for the purpose of the parties, rather than simply transferring the burden of the obligation only "desirable", there should be a natural behavior independent of the Property Act claims.

(B) From the system point of view
Civil law system in China under the current contract for the sale, the buyer of the property can only be created with the seller claims the transfer of money transfer claims, but it does not directly effect the transfer of property occurred. Seller under a contract of sale Property transferred to the debt, but still need to transfer their property to property transfer property's status as a legal act, in order to make property in the strict sense a change in the principles of autonomy, rather than by Legal acts directly to change. At the same time in the event of a third party seller of the property right to dispose of the case to the buyer, the buyer will not of course because the existence of contract of sale to obtain property, only after the seller ratification, the buyer will be effective to obtain property rights. I think that is a valid contract for the sale at this time, but the performance of the contract still need to rely on people not entitled to dispose of property who transfer property, here following the principles of autonomy philosophy. visible distinction between acts of property claims and civil behavior and the requirements of the principle of autonomy is consistent.

(C) From the perspective of comparative law
In common law property law and French civil law, not pulled out of the abstract as "legal" concept, there would not claim the division of behavior and property behavior, but behavior theory of property rights by Savigny The <"German Civil Code>> and" the Swiss Civil Code>>, are clear recognition of the Property Act, but <<Swiss Civil Code>> whether there is an independent Property Act is misunderstood.

China's Tong said that China adopted the Swiss civil law claims legislative model formalism, which claims that the property has only the desired changes, plus the delivery or performance of an obligation to register, Property Act does not require additional . But as Li Yongjun teacher said: "no one can deny that the Swiss civil law is recognition of the Theory of Property Act, only conditional recognition. As German jurist Zweigert said, the controversy of the well known German jurist Hu Bell Property Act theory deliberately kept silent. He believes that, in reality, a variety of cases, the external appearance of different forms, have different interests, the party's meaning is vastly different, so fixed in a position of legal practice is not appropriate. ... Huber's theory of the deliberate practice of fuzzy property rights affects the behavior of the Swiss Civil Code. Although the statute does not like the German Civil Code, acts as a complete system of property rights, but the shadow of Property Act has always there ... .... So, if that use of the Swiss Civil Code on the legislation of civil law, civil law in China can not be denied even the behavior of thing exists. "
Taiwan, China scholar Professor Su Yongqin, has done another explanation, he said: "Switzerland, China and France can not antagonistic 'Real change only through the property disposition' of the logic, just a little simplification, the desired property requirements, be interpreted as a result of sale and purchase agreement the buyer has obtained ownership of the transferee request the seller to another party only for the punishment means that the property disposition can be set up, in other words, only a 'compromise 'shift to individual behavior only, did not negate the independence of Property Act. "visible, from the Comparison with the Swiss civil law, as in the case of acts of recognition of property rights should be in an academic plausibility.

Thus, whether from the context, system or comparative law point of view, laws of property right not explicitly recognize the existence of Property Act, but it is already part of the shadow of the Theory of Property Act exposed - recognized the independence of Property Act . Therefore, the Property Law provisions on the principle of distinction not only of great practical significance, but also has great theoretical significance.

V. CONCLUSIONS
Theory of Property Act by the clearance, we know that as long as the claims in the civil law system and the recognition of the division of property, it should recognize the independent existence of Property Act. So, in our acts of civil law system is an objective property exist. <<Property Law "> under the principle of distinction in the show that China has recognized the independence of Property Act, but did not recognize the property free of sexual behavior, that behavior of the whole theory of property rights in our civil law system has not yet been fully established. Our legislators not explicitly indicate that the attitude of the theory of Property Act, but the provisions of property law can probably glimpse of. recognize the principle of distinction does not imply recognition of property rights must act theory, the principle of distinction (the Property Act independence) is just part of the Theory of Property Act. a clear grasp of this distinction between the correct behavior theory principles and property rights is of great significance. Links http://www.hi138.com Research Papers Download