On the Theory of Property Act should be recognized

Paper Keywords: Property Act debt burden acts of disposition behavior
Abstract: German Law property act theory began in Confucian theory of Savigny on the further development of legal acts is a legal system there are more controversial. In China, with the development process, plus the Civil Code must, on this issue and more in-depth study, and whether the theory of Property Act should be produced two opposing views.

Property Act for the German Law on the major theoretical, although the presence of scholars on the need for the concept of different views, but it has been adopted for the German Civil Law system of a basic concept. As an important part of their independence and non- by theory, has also been acknowledged by legislation, and became the basis for the German Civil Code. In China, with the acceleration of Civil Law, on whether to take property behavior, generated considerable controversy, "<Property Law"> issued after the legislation has not made this issue clear. Therefore, the discussion of property act theory itself, there should be a better person necessary.

First, the argument
(A) the question of Property Act, the reasons generally summarized as follows:
1. That the Property Act is too abstract and abstract thinking is a product of extreme laws. In this mode of thinking, such as trading and other transactions simply divided into three parts, namely a debt contract, the two property contract. General made such behavior in the sale, there could not be aware of this, it really is real life abuse. Kirk (Gierke) In "<draft Civil Code and German Law"> in this attack the worst.

2. On the negative transaction security. Admitted Property Act, which in turn recognize the sale of the Property Act and other acts of independence and non-sexual, which makes the behavior when its causes, which claims act is revoked, the original title people can not be based on its ownership claim for restitution for the property, but only for return of unjust enrichment by the ownership status reduced to ordinary creditors. This is the original owner of the protection of very ill, and against the trade fair sex.

3 One should recognize that the behavior of real right (to say whether the property should be established to act theory), transfer of property rights is rooted in the nature of the qualitative behavior. Shall be considered acts of property transfer behavior attribute the fact that, in order to avoid the matter rights violations in the Theory of contradictions.

4. Property Act is too abstract and abstruse for ordinary people hard to understand and grasp. Many scholars have my doubts about.

(B) and the relative, that is necessary to recognize scholars believe that the behavior of thing: 1. To perfect the concept of legal acts and refined to address some of the property changes for the direct purpose of the nature of the legal acts, which so that a clear system of property rights and claims, the two wings of the common supporting the balance of civil law.

2. Admitted Property Act, the act of buying and selling, etc., causing property changes in behavior should be separate from the claims of Property Act, and then then Real Rights, that is claims act is invalid, does not result in transfer of ownership takes effect. In this way, transaction security to be protected. And Innocent on transaction security protection, then there is how to determine that there are many difficult problems in good faith, as a reasonable solution to this abstract principle.

3. Real property behavioral theories have explained the publicity of the "credibility", that is why the property must be publicly advertised and made in publicity after the third against the effectiveness of any problems.

4. Some of the emerging legal system, such as retention of title, and other modern security to guarantee the property rights system must rely on behavior of the abstract theory can be reasonably established and explained. And abstract than the incidental real property secured creditor has a secured superiority.

Discussion of this issue, may wish to follow this idea: the concept of property and debt is defined as how? It should be strictly followed? Two concepts form the impact of civil law system? What is the impact of theoretical and practical utility? Achieved ( or changes) can claim property and made the same way (claims actions)? If you use the same way, its inherent advantages and disadvantages that? in a different way (claims actions, Property Act) to get different rights , its advantages and disadvantages, what is? compare, and consider other factors (including social development, the referee applicable legal education functions), resulting in what are the optimum point of view. Of course, just what in the existing social development and for us the foreseeable social development may, for the more favorable of the system, the As to the next absolute, positive conclusion, in fact, no science and the need to speak of.

Second, the analysis and review
(A) of the Property Act and the creditor acts
In continental Europe, based on Roman law tradition, to the completion of the 19th century as the center of ownership, with usufruct, security interest, as the fact that the state acts and the possession of the Property Law composed of the abstract system. Correspondingly, the contract credit and debt is also considered one of the reasons occur, and unjust enrichment, and without a more abstract and tort claims law system. Thus, property law and creditor law is certain to be provided under the historical conditions and the formation of things.

The distinction between property rights and claims are: 1. The rights of different objects. Show who the creditor is required for certain that it is not certain behavior or the right to property is a pipe leading directly to the right of its properties .2. Right to the effectiveness of different . creditor with equality, the same number of the debtor's debt, the effect should be equal, priority issues Who does not occur. and in a number of things happen on the property, places a priority .3 occurs first. effectiveness of different strength. Real effective force stronger than the claims. reflected in the security interest is obvious even on .4. the right to exercise different. Right there to catch the right to claim no. creditor can not claim the third person outside the debtor rights. see credit and right, the former is more dynamic, which is more static, the latter of the end for the former, the latter the former and new students. in circles constantly, common services in the life of the people, the development of society, meaning to Ju!
(B) changes in property rights to what engine
1. Given the different nature of the rights, will inevitably affect the right to change the meaning of place that the nature and content are different. Since it is the meaning of different nature that should be legal to whom different nature, in fact, the logical corollary .2 . If the same time with one engine to changes in wage claims and property rights, or that one of the rights (property) rights of the other changes in system changes, of course the results, then both the presence of yet they can, However, there is only a right in change of circumstances (such as abandonment of ownership, mortgage of the German law on the establishment of land leases and other debt), it could circle the said .3. the concept of law, due to the referee for the needs of code stability, for broad, inclusive of the needs of the new social conditions, social relations through the complex needs of clarity, have determined that the social phenomenon of numerous abstract finishing requirements.

Therefore, the legal concept of the real world straight without changes in the user, is extremely rare. The concept of debt is to require the debtor is (or not) a certain behavior. Such as buying or selling the debt, that is, property changes made require the debtor to perform (ownership transfer) of the intention and for the delivery of the subject matter of leaving the creditors to obtain ownership of the behavior. come from the general psychological analysis, we usually think that the recent agreement is the most effective. As we have accepted only if the delivery of the subject matter (in the real estate was registered), the only moment that the other side of the delivery has meant that transfer of title (usually the default) is final and effective the same. (many scholars believe that with the transfer of the delivery of the meaning of the subject matter that is fiction, but on the contrary, any right-thinking people made such a behavior when they are bound to be said that the meaning of the default form) for this not explain the distinction between the independent existence of property desired? It errors produced in line with the claims only act to perform certain obligations, and changes in property directly, should the property act? 4. society gradient, transactions have become more frequent, resulting in an increasing number of new rights. cover observable, is the property and claims of increasing trade with the common need to adapt to the results. If the maximum mortgage, the security interest in the claims of non-compliance exists. cover claims does not distinguish between behavior and property behavior is difficult to solve this problem. Other such as retention of title transactions, also not a simple act theory can be solved with a .5 credit. acknowledged property rights act theory, the concept of legal actions have been substantial, as with the civil rights side by side one of the two core elements of the law behavior and the scientific concept was refined, in the end how many positive (in theory and practice), special emphasis on the value. as a social science, the concept also requires systems and precision (the tendency of this non-concept of law). Some scholars that such abstract thinking with the extreme, can be seen from the above analysis of yore is difficult to set up. Links to Research Papers Download http://www.hi138.com (c) act theory of criticism on the grounds of the property counter-criticism
1 Property Act for the fabrication of products, serious distortion of the real-life process, the law applies to more harm than good. For the fabrication of the term, seems to be doubtful. Fabrications, false facts are not facts. Cite a typical example, in the civil law "legal "concept, the number of abstract elements, should be no doubt. The fiction of the strong, far more than property rights acts. But the concept can be developed into a civil body of important concepts, why not? The key lies in the need to adapt to the social reality . Thus, property law can adapt to act as long as the development needs of social evolution, can also be used. Moreover, the Property Act's proposed legal action is based on the reasonable theory, it is a legal concept and further development no fabrication at all.

2. That the property not because of behavior theory in the theory is not conducive to the protection of security of transactions, then that legislation should not adopt this theory in China. This point needs clarification. First of all, the creation of Real Rights and Savigny theory, is a the first transaction security protection of human intentions. On the other hand, the establishment of their own or acquired in good faith to solve many problems (such as how to determine good faith, require the owner of a non-bona fide assignee of proof, it is not easy, and the proceedings on the judge to join a certain subjective judgments, there are doubts. Although theoretically meet the trading spirit of justice and fairness in practice there are still many difficulties to be overcome). In this, we should note another point, if not taken without reason principle, we can not deny the importance of Property Act. because there was no change in the property because of the only acts that reason there are claims act in the presence of the discussion makes sense. The Theory of Property Act is only a part (I personally think that the same decision can not be considered part of the abolition of Property Act). To deny without cause and then denied the acts of our country should not adopt the concept of property rights, is unscientific.

3, there are scholars, can act as the property's legal property changes occur, people ask, since the acts of a totally independent property rights claims can conduct property changes occur, people desire hair biology the right to change, the straight does not have to conduct a property, and then engage in acts of a creditor do? In my opinion: for example in real-time transactions, a property can only act occurred, not that there is also a creditor behavior. Because the only concern at this time to acquire ownership of real-time, eliminating the need to perform the existence of a certain behavior (transfer of ownership) for the content of the claims act, just a direct transfer of ownership of the desired place (property agreement) on it . This is a reasonable theory and practice are established.

4. That the property in violation of the spirit of autonomy, since only the desired property does not occur with changes in the legal consequences of property rights, property rights agreement with the behavior of statutory requirements for registration or delivery of a combination of these property changes can occur. Need noted that, because of the characteristics of property itself, or delivered only to the registration element as its entry into force, entered into force only with these elements, changes in property rights can occur. Effective Important legal effect is the social assessment, mostly based on social policy, justice and the rules, such as to type the contract, not only a debt agreement, but also to the establishment of a written or become effective, is not the same truth? There is also a point of view, is that the review of the registration authority limits autonomy, does not belong to the scope of autonomy. This view is questionable. As mentioned above, in view of property (especially real property) are unique, personal autonomy of the state a degree of interference and restriction is absolutely necessary. Absolute autonomy is not suited to the requirements of social development. Moreover, Such intervention should be to what extent, to what extent, how are reasonably standardized. and can not be said to be destroyed as long as they interfere with autonomy.

(D) Summary
1. Right behavior, though its founder is focused on Sabouraud this typical behavior-based trading to be abstract and argument, but its content should be in no way limited to this excellent result of). Its contribution to legal theory, should also be more extensive discussion and understanding, can not be generalized. on the principle of the review for free, it should be more comprehensive and objective analysis, because the problem does not have final nail.

2. Right behavior, contribute to the development of the giant law, for the deepening of China's market economy, it should be bold and use of this theory. Of course, this does not prevent its in-depth review and improvement of its transformation, the establishment of The property has the characteristics of the times from behavior theory.

3. Theory between scientific and popular, there are indeed contradictory. Covers the reality of science is summarized and refined, in order to penetrate the essence of abstract thinking and observation. It follows that an abstract theory and reality has a certain degree of disconnect, and is objective existence. However, as the mastery and application of science, as many scientists of the transaction, the law judge is to master the law with considerable scientific knowledge in the judges hands. its run, with the abstract should not become a problem understanding , made based on scientific theory of justice is the crux of the referee. Of course, this does not prevent the spread of legal knowledge, provided that the process requires considerable only. Links to Research Papers Download http://www.hi138.com