Of Legislation on the Right

Paper Keywords: property rights legislation; Property Act; the right to land contractual management
Abstract: Our Property legislation should state ownership, collective ownership, private ownership to make a distinction, and respond to requests for material on the rights, property of the Public Credit, acquisitive prescription, make a usufructuary rules. Right act theory itself has serious fLaws therefore Laws of property right should not be adopted this theory. land about the fate of the peasants, so the transfer of farmland use rights and the arrival of potassium should be cautious.

In China, around the <<Property Law "> The introduction of the draft property Law scholars on how to make this a lively discussion of the Law, such as China in the end should not be the formulation of a property law, what is the concept of property law with a large or limited The concept of property law, property law formulation of what is the most critical legislative technical and legislative policy formulation in the role of property law which is more important, and so on. The author of this paper to analyze the following questions:
First, on a number of important property rights system
1. Ownership. Enacting the property law, only the general provisions of the ownership system is not enough to be on the state ownership, collective ownership, private ownership to make a distinction. Because a large number of state-owned assets in China there exist a large number of collective property, but also There is a growing number of private property exists. If not pay attention to these situations, but generally speaking property ownership, it is difficult reflecting the basic economic system in China. As the most important reform of property ownership is a national The implementation, therefore, we first must state clearly the crucial issue of ownership. In addition, collective ownership, people often do not know their rights body said. We must be clear members of the class to learn how to exercise collective ownership, collective ownership also understand is not a member of a special co-ownership, the rights of members how to be protected. In addition, the ownership is collective, how do its members enjoy the property? Therefore, the collective ownership of the following must have a strong legal protection can be contractual management, and ensure contract period and to enable them to transfer, mortgage and be able to rent. The essence is to make our farmers have a copy of your property. Only in this way can the Chinese farmers can use this property out of the land, to other industries .

2. Right of claiming system. Right of claiming the state is subject to prejudice the successful property, the right holder may request a certain action or obstruction of human behavior is not necessarily the right, generally include a request to stop the infringement, eliminate prejudice, restitution , return the original and other rights.

3. Right of Publicity and Public Credit System. For real property, the property in order to register as a method of publicity, and movable property in possession of as rights, to deliver the right changes as a way of publicity. In this context, even if the publicity out of the property is defective, the legal method for the trust expressed in this announcement relating to property and transactions, continue to admit and real property the same legal effect. The protection of third party system has been acquired in good faith the more to the more modern rule of law effectively in a market economy and improve the safety of market transactions to promote the principles.

4. Acquisitive prescription system. Acquisitive prescription system means that people without the right to occupy a certain state of another person's property or the exercise of property rights of others, at a certain period shall obtain ownership or other property rights system.

5. Usufructuary. Traditional usufructuary said, in fact, usufruct of immovable property and real property more of a usufructuary usufructuary right to land, even the houses are usufructuary. Therefore, in the development of property law should be considered when the usufruct of the housing to relevant regulations. There is also room for the right to use the right Code is satisfied that the person should be considered the right method. Of course, if the intangible property that some of the basic laws of intellectual property also
2. To Mr. Wang Liming, represented by scholars oppose the adoption of property act theory. They think that our Civil law has never recognized the transfer of ownership of movable property must be consensual, but our laws do not recognize the existence in the real estate sale contract and contract claims Property contract two contracts, the delivery of real estate sales contract is also the basis for the obligations arising from, but also to the registration of immovable property based on sales contracts.

3. To Professor Liang, represented by scholars advocated the adoption of the independence of Property Act, but not to adopt the Real Rights of view. They believe that property rights theory focuses on behavior change and the reasons for property and material distinction between acts in a change to take effect the registration and delivery of elements, not the "Real Rights" and "without Cause." Therefore, the draft law does not adopt the theory of Real Rights, and shall specify the reasons for behavior changes in property rights principle of distinction and the principle of publicity.

I believe that the theory of Property Act as one of the basic theory of the German Civil Code, in maintaining the integrity of the Codex system, logical and so has an important role. However, because of our legal system, made in good faith, warranty and other systems, both physical rights act theory itself has serious flaws, such as severe damage to the interests of the seller, but its content is obscure is difficult to understand, therefore, the author advocates that China should not adopt such legislation, property rights theory.

Third, transfer or mortgage on the Prohibition of the peasants the right to use farmland
Determine the property rights of a legitimate rule of law is, in addition to legitimacy depends on its normative goals and targets can be met, the important thing is to see the rule of law and fact, the distribution of wealth risk, how to influence people's behavior.

Has been introduced in several <<Property Law "> proposal draft, chaired by Professor Liang Huixing proposed draft of the right to land contractual management is based on" agricultural land use right "instead of" land contract and management rights. "They think that in fact the right to land contractual management is a creditor, rather than property rights, transfer of land to be left to the contractor. The provision of agricultural land use rights may be based on the household contract responsibility system in rural China, the experience has been made the basis for achieving the purpose of agricultural land use of the relationship between property rights and protect the legitimate rights and interests of farmers contracted, but the Proposal on "agricultural land use rights shall not transfer or mortgage" as stipulated in the level of property law, its legitimate sex is worthy of study. Links to free Download Center http://www.hi138.com paper Professor Wang Liming, presided over the proposal in the draft, the use of the "right to land contractual management," while the scholars believe that the key issue is not the name, but in the right content. This is the reality of respect. We know that, "land contract and management rights," the term has long been known for the hundreds of millions of farmers, whether to switch to any kind of name, are very likely to be mistaken for non-contracted land management right and then continues to exist, which may occur between the instability of rural land contracting. to look at the current situation of our country, our legal education is also a farmer can not do what every right to inform is the original land contract and management rights. Therefore, this proposed draft more attention to public ownership of agricultural land-use rights, pointed out that the land contract and management rights and rights of the social basis of Perpetual Tenancy different nature. The draft proposal provides for the right to land contractual management may be transferred, mortgaged, although higher than required vague and lack of appropriate explanation is difficult to try to figure out their intention, but an objective point of view, this is public land ownership can not be transferred but the transfer of public land must be consistent with reality. Unfortunately, the provisions of the proposed draft of both the right to land contractual management may lease, contract to others, but again to a certain amount of arrears of payments contracted for cancellation the right to land contractual management of legal reasons, this requirement is in conflict with public ownership of land; and its claim to land contractual management rights can be freely transferred, but also for disorderly land transfer potential problems. the right to transfer land contract and management are two situations: the same mass transfer between members and to transfer land contract and management rights to collective organization other than the operators of agricultural production. In general The former owner of the land is not easy cause loss of control of land may be given greater freedom to transfer, but if the latter allows the free transfer, the number of transfer, the land owner can not even know who the real owner of the land contractual management engaged in agricultural production are probably some farm workers are employed. At present, land use rights transfer in China is widespread, it is necessary to consider the farmers who lost their way out of this land of great political, economic and social significance. Land Use Right Transfer is very necessary, but must also consider the actual affordability of our society. lifeblood of land is under the conditions of most farmers, there is no free flow of the social basis of the land, which does not allow freedom of contractual operation right of land transfer. Although some people to dispose of their property rights that do not usually need to obtain the consent of others, but the right to land contractual management shall be outside the usual, as the land owner can not easily dispose of their rights the same.

As we all know, due to historical reasons, China's agriculture, rural areas and farmers is very complex, involving a wide range of cooperation and division of labor, to solve this problem very difficult, but I prohibition of the peasants in the transfer or mortgage of agricultural land use rights rules legitimate and reasonable to make a few questions: (1) for farmers to transfer or encumber the right to prohibit use of agricultural land is able to prevent the farmers lost their land. (2) If the prohibited transfer of agricultural land use rights of farmers, how the face of agriculture scale and industrialization trend. (3) farmers can not transfer or mortgage of agricultural land use rights can have on farmers to obtain financing in various business in the way.

In summary, a country's property rights system and its social and economic systems are inextricably close relationship, therefore, a country's property rights system should have its own characteristics. For the purposes of development of property law, I believe that in the development of our country property law in the process, taking fully into account the historical and cultural traditions of China and China's existing legal concepts and institutions, should also be noted that the primary stage of socialism in China social and economic characteristics of the system. In particular the country is going socialist the early stages of public ownership and ownership to resolve issues related to both the development of property law is the primary attention. I believe that our legislation should adhere to the ownership of property as the core framework of Civil law property law to a combination of individual and society the concept of ownership as the core, in theory, the legislation will be the focus of our property as the center from the all over to take advantage of the center, and focus on property rights and security interests with the interests of the type and content, to ownership and use of both, property law to adapt to modern trends. reposted elsewhere in the Research Papers Download http://www.hi138.com