On the Right of behavior and choice of property law legislation

Paper Keywords: Property Act; claims act; without cause; Property Law
Abstract: This article from the Theory of Property Act loopholes and drawbacks of ontology staff analysis of its operation value (social utility function) of a number of disadvantages and shortcomings, and then exposed the Civil Law system with the system of conflicts and inconsistencies. In view of this , China's property Law should not adopt the theory of legislation, should be resolutely rejected.

Imminent introduction of property Law, property rights theory of the adoption of behavior or not directly affect the construction of the entire system of property Law and Civil law systems of many choices, but also the development of property law to be addressed during one of the main problems. This paper on its science of ontology, value theory and system of running the three levels of coordination for some of its comprehensive analysis and substantive evaluation of the Real Right Law of our country bit by bit into the offer opinion.

First, the controversial theory of Property Act
Theory of Property Act and development, the world of legislation in many countries and regions for which they rarely have a different attitude: (a) to Germany and Taiwan of China, represented by certain doctrine, "the concept of legal acts should not only include rights and obligations established for the content of the burden of debt behavior, and should include the rights and obligations in order to achieve change in behavior for the content of the property. "Real meaning of behavior and behavior that claims are independent, respectively, property changes and occurrence of double the legal effect of changes in debt . its purpose is to exclude acts of property claims of interference and influence behavior, to emphasize the behavior of thing without cause. (b) The representatives of France and Japan, negative doctrine, changes in property rights law of obligations based solely on the parties meaning that can occur, the so-called property rights does not require an additional act to the principal. claims act, and implies the absorption of Property Act, so that the two did not speak of independence and non-sexual. (c) as the representative of Switzerland eclecticism, only recognition of the principle of independence of Property Act property abandoned the principle of non-sexual behavior. legislative theorists dispute must reflect the different views on this issue, in all Civil law countries, particularly following the by the transplanted German law countries, the scholars for comment on the merits of the Theory of Property Act is intensified.

Second, property rights theory of critical behavior
The establishment of modern Civil law system, not only to consider the scientific basis of the theory and rationality, also requires a good system as a social reality of this level can play its proper value, can be harmonized with other system applicable to market economy and social life in all its aspects. INSIGHTS system of Civil law system, and then look back property act theory, the theory of its Damiuburan format features a flawed practice, the application of formatting does not bore people, is indeed worrying.'re as follows:
(A) Property behavior theory and critical insight into the ontology
1. Private Property Act Theory in the history of the Roman succession and its practical application in German society does not necessarily deduced there must be sufficient in our application space. Right behavior concepts and theories put forward first by the German scholar Savigny , and history of style law school is the national spirit of that legal product, jurists should be a focus on legal history, the modern legal system from which to explore the historic. the theory that the law is the phenomenon of historical tradition to punctuate built on the highly developed economic, political, cultural, or quasi-reality based on the reality of the legal system. "historical method to objectively reflect the development of known natural laws, but this method once the legal and historical nature of law school , the combination of development concept, breaking the limits of its rationality, complete exclusion of the 'ought' Research and the use of rational reasoning, the final step into the camp of metaphysics. "scholars say for sure whether the requirements of the Chinese view of the spirit will gradually to meet the spirit and the sense of convergence of the Germanic nations to guarantee property rights act theory and to learn from our country do? different legal and cultural traditions and legal awareness of how easily the public to absorb the material and the traditional German law to ensure its smooth and effective application of it ?
2. Property Act Theory "false claims act independent of the outside of the Property Act, further fragmented because the link with the Property Act, his best abstraction of sensationalism." Some scholars believe that "jurists of the law should be based on results of scientific Research development, the system should not be based on legal knowledge is not the simple laws of social emotional development of the people should not be trading a pair of gloves from the most simple transactions that summed up for all, even very complex legal rules dealing . "However, the enactment of law must consider the laws of simple feelings of the people, not to mention the Civil Law as to adjust the relationship between social and economic life private, the public should pay attention to the psychological foundation and understanding, coupled with the relative weakness of the legal basis, the real draw foreign legislation Or something close to twenty years, Germany has always been that there is no tradition of abstract thinking. the face of such a legal basis, in particular, private law and legal technology is not based on solid and skilled people, and to obscure the theory that the use of the abstract, just to develop the applicable law jurists, it is also called "civil law" do?
3. Real property behavioral theory completely consensual artificial fiction, just an abstract theoretical analysis and analysis of the use of technology does not exist in real life is so empty illusion of the phenomenon. Try to trade relations example, both parties signed a sale and purchase intention to claim under the premise of the contract, one party to pay the agreed price of gold to obtain sufficient ownership of the subject matter, the other delivering the subject matter to obtain price of gold, which is both the content of the contract, of course, Real change happens inside their own performance requirements, while the property was forcibly act theory to the subject matter of the transfer of ownership and transfer of ownership of the desired price of gold to separate from the contract for the sale, as separated from each other with claims of consensual agreement exists, since the material rights violations can lead directly to the occurrence of effects of property changes, it claims the existence of the purpose and significance of behavior will lead to doubtful. but the fact is that changes in debt contracts for the content not only property but also led to the consequences of property changes occurred, the parties to the contract by transferring ownership of the subject matter and price of gold ownership, there is no agreement then there is the fact that property, real property agreement is a continuation and extension of credit agreement.

(B) Value of Property Act to run the analysis and criticism
1. Right legal relationship between behavior theory does not make clear, it is not conducive to application of law, but to make complicated legal relations, as the law applicable to the obstacles and adds unlimited trouble. Stiffly Property Act Theory of a civil legal relationship to the anatomical obtained a clear legal acts of the three observations, this one-sidedness of the theoretical analysis of the pursuit of an academic and social life in total disregard of the truth, once applied to the social and economic life would be inconvenient. Mr. Yu Nengbin editor of the <"Modern property law expertise On the> "was Written by an objective method of quantitative analysis, considering the two property rights related to behavior and the behavior of the trading relationship between a creditor, there are fifteen kinds of possibilities as much as we can see its complexity, in the event of disputes, and inviting more difficult cases .

2. Property Act Theory to fully implement the principle of autonomy is no less than the value of the level of the system is better reality for many. Some scholars believe that the behavior and property claims if the independent existence of acts, creditor behavior is a means that the property is an act of intention, meaning that the effect of the former and the latter can not, which makes the behavior of either the creditor or in the property behavior, can fully implement the principle of autonomy. that claim too far-fetched, because the property changes according to the results of claims act, which only means that a creditor act, but this still means that the two sides independently complete self-consciousness, there is no denying the meaning of autonomy. Moreover, a number of property act theory meaning that also can not claim that its behavior than the intention to function in the larger, better.

3. Property Act theory can not for the publicity, the principle of public trust to provide strong theoretical support. Claims formalism formalism and property are using the principle of publicity to achieve the purpose of property changes in legislative mode. Creditors'formalism legislative model, publicized the fact that only play the effect of property changes, defects in behavior if the reason is the fact that property changes are not set up, which also shows the effect of property changes are not due to completely determine the effectiveness of publicity, are still subject to check on the cause of behavior. Property in Germany, changes in mode formalism, real estate is a form of review of the implementation of the doctrine, the Registrar need not review the validity of claims act, but only to review the effectiveness of Property Act, which is both out of Property Act not because of the requirement, but also convenient for the Registrar to consider the review. However, if the lack of capacity, fraud, coercion, show a fair and legal acts occurred, malicious collusion damages the interests of national collective behavior or a third person, in writing if a simple review, it is difficult find. "Publicity to help the so-called registration public authority to ensure the correctness of the understanding of property changes are unfounded, at least problematic. "
(C) of the Property Act and the civil legal system of the friction and conflict
1. Property Act and the General Principles of Civil Law
Some scholars believe that "due to the establishment of legal system is jointly supported by the results of Property Act, so we can draw the conclusion that, property rights act theory is not only a legal act can be established according to one, but also to establish General Principles of Civil Law one of the foundations. "But the whole world in view of the developed countries such as Germany, Switzerland, Japan and other countries have no concept of Property Act with that, the civil code system still tightly structured, highly respected. it is necessary to meet system complete, the corresponding need for neat, but also consistent with the core principles of behavior theory property - real property acts directly lead to the occurrence of property changes, then just set a property does not have to act, why should changes in the property before there is a change but does not lead to any significant property claims behavior? and "property included in the meaning of behavior that is in the legal sense, meaning that duplicate claims behavior or performance, it can not have the contrary independent content on the claims act. "" It is essentially a means of behavior that claims the significance of the practice. "Links to Research Papers Download http://www.hi138.com 2. Property Act and the Innocent
Some scholars advocate the use of Real Rights and to replace the principle of bona fide acquisition system. I believe that the Real Rights of million to replace Innocent no reason. Not because of the principle of the subjective state of mind to determine whether or not the third person in good faith extreme aversion to the standard theory is essentially the result does not distinguish between good and evil, while the third person, including the general one of the generous protection, as based on "the delivery from the error is valid," saying, even if the malicious third can also be made under the ownership right to dispose of this not condone malicious collusion with a third person, third person "unlawful" access is still subject to legal protection? the Innocent or not given in good faith for the third the full consideration and attention, if confirmed malicious or negligent third party, you can not apply the system to recover the original rights holder may exercise the third person to return the original request to seize power, to safeguard their own interests. As for the real estate, real property can be given that we fully registered as to the credibility of property rights, which also aims to protect the third person.

3. Property Act and the retention of title
Sure that the scholars insisted that the system needs the property to retain ownership of behavior theory to be fully utilized. In the buyer-seller relationship, a party may conduct the additional conditions in the property, the seller did not get all the price of gold in the case can still be retained ownership of the subject matter, this one is very bad for the buyer, because even if it has delivered most of the price of gold, his rights are still only a right to expect the nature of debt. Under normal circumstances, the parties can set up a sales contract on the transfer of the subject matter of the additional conditions before the conditions are not achieved, the seller can dispose of the subject matter, bear the liability; and the buyer can also enjoy their creditor to another person, also to avoid the reference to property arising from acts of unnecessary trouble.

Third, China's choice of private property law, see the Legislative
Landmark in the civil sector in the development of property law have been onto the agenda, at a time today, many scholars have drawn Research group or a draft of property law have come out. Which was undoubtedly the most world-renowned National People's Congress who proposed draft of the NPC Law Committee of the proposed request for proposals is issued and the Academy of Social Sciences issued three proposed draft of property law. the first two in the proposed draft of the Property Act did not mention, for the property of their attitude and behavior theory of the legislative proposal say the least. China Academy of Social Sciences "China's Property Law" Proposal Draft> 7, "Real change their behavior because the principle of distinction," states: for the purpose of property changes to occur because when the act take effect from the legally established. can not be made in the biological the right to change the results, the party at fault shall be liable for breach of contract. which provides essentially abandoned the property without Cause and stick to its ideological manifestation of legislative independence. the core principles of the Theory of Property Act should be objects the right to act without reason, and its independence should be considered as not only paved the way for sexual without Cause or you can call it the logic of the premise, in my opinion, does not recognize the property rights of sexual acts without a real sense is not of Property Act. In addition, advocates of the draft legislation is essentially academic in recent years in China dispute this theory fills a compromise is not really the purpose of the introduction of its independence and not only the mining mining without cause is an example. Besides the draft legislation which provides that only the ideas, not the reality of the spirit of expression. but also vertical, such as Mr Liang said, the draft is only a reference fills legislators, dare expect all adopted. Many scholars to prove the property provisions of the draft legislative acts of thinking has penetrated to the legislation of the view of property law is obviously not enough solid evidence of reason and argument based.

Theory of consciousness as an idea should belong to the scope of the material world but the reality of abstraction and dialectical analysis, it is inevitable that the infiltration of mixed subjective and objective, which is also no shortage of extreme mental and traces of subjective bias. Property Act Theory has the logical structure of complex and abstract theoretical system, the author is also quite critical theory during the delicate, the Property Act introduced the concept and theory is a certain sector in our country, the role and significance, and is conducive to the academic perspective to re-shift examine our civil legal system. As for the scientific component factor is more than just a theoretical self-evaluation, there is no practical significance at all.

IV Conclusion
Many scholars with plenty of space in addition to presentation and argumentation Sabouraud's "Theory of Property Act," is how the existence of Germany and Taiwan of China, the development and its impact on the code, the value for its base in China, and various system Coordination issues are Banzhebanyan suitable for its application to our social life are also rare in the concrete construction paper. a system can be applied is to have a corresponding social base, cultural traditions, economic conditions and people's way of thinking as the basis and foundation, reasonable system of a country is not one size fits all, "the more national, the more the world" seems reasonable here, has lost its logic. There is a reasonable introduction of universal applicability of such reasoning is absurd logic of the speculative point of view. For the system of civil law system of property law in particular, the various defects in their property due to act to defend the system and give them a lot of accusations and refuted better to focus on the reality of our existing system of rules of civil legal system, review, reflection. Links to Research Papers Download http://www.hi138.com