The System of Civil Law and the Theory of Property Act

Paper Keywords: Property Act; system method; logic system; value system
Abstract: whether to adopt the property theory of property rights legislation which acts an important issue. But ultimately depends on whether the adoption of its legal environment. Because of the different legal environment in the realization of the value of the Law may have different appearance (logic worship) system as a support, so the adoption of property rights in China should act theory, it should be from our existing Civil Law theory, the use of systematic method to find the existence of the living space of Property Act.

The development of property Law in the process, whether to take property act theory is a big bone of contention. In Civil Law systems in the construction of, a system should be from their theoretical basis, through the study of ontology in the system, the Law constitute the basis of the nature of the system to determine the trade-offs. the intention of this Article is from this idea, the use of systematic approach to discuss the theory of survival of Property Act.

I. Characteristics of Civil law system
Comes to systematic problems in the methodology first thought was prevalent in the Age of Enlightenment in the form of natural law to pursue the logic of the method, and the resulting formation of the simple pursuit of a rational form of Civil law system. Indeed, the simple pursuit of the concept of logical system The Analysis of Law (concept of law) rule of law for nearly a century, the codification of the Code and applicable law have had a significant impact. codification in the Code makes the Code on the logic of a closed system, the mission of law to regulate itself for the purpose of rather than to achieve social equity and justice for the purpose. in the strict application of the law applicable syllogism, the absolute exclusion of value judgments and the judges discretion. However, the law is the origin of social life as a solution to a conflict of interest among the mechanisms, which aims to adjust the behavior of the subjective will of man, and man's subjective will of the behavior is not governed by objective laws, not on behalf of the logical necessity of the mercy of causality. Therefore, the law can not simply pursue the logic of legal standards and evaluation as the sole criterion for adjustment of behavior can not be a simple non-true or false choice. so that the concept of the rule of law, the law out of touch with social reality occurred, to depArt from its origin and purpose. since the law exists to coordinate conflicts of interest, to resolve this purpose is the adjustment of behavior to achieve. The standard of behavior modification should be the logic of non-standard true or false, should be good and evil. evil is the problem of value judgments. So the adjustment of the legal means should be the standards used to measure value judgments on the basis of various interests, as far as possible the legitimate interests of all are the corresponding protection, only to be made between the interests of a number of compelling options, be in accordance with the "two evils choose the Light, "the principle of choice. Seen in this light, the value of which is the ultimate factor in the legal status, the value factor is the life of the law.

However, the value judgments of right and wrong, good and evil and so the scale of evaluation, it is a purely subjective value judgments problem. But a purely subjective question in the application of which is difficult to avoid human interference, it is difficult to achieve equality, fairness, justice , that is difficult to achieve stability of the value of the law. Therefore, the nature of the decision by law must be the value of these factors in law to rationalize the objective can be achieved so that the functions of the law. and the law of which the value of the factor is stored in The concept of law, principles which, the concept is the carrier of the legal value factors. Therefore, to realize the value of the rationalization of factors, objective, we must make the law of the concepts, principles done in form of rationalization, that is, that the laws of the concepts, principles constitutes an objective, internal coordination unified, integrated system. and this is the law of the technical issues, and this technical problem can only be done by way of logic. So we say that the legal system is the unity of content and form. In Formally, the logic center, the pursuit of legal concepts, principles of coordination between the logical system, unity, integrity; in the content, places value judgments as the center, the pursuit of value system is reasonable. the legal system of the form and content are mutually dependent and indivisible. form must be guided by the contents, leaving the value, and the logical form of existence of the grounds will be lost, too, left the logical form of packaging, the value of the rule of law would not be a strong factor in vitality. simply the pursuit of logical system (the concept of law) or the simple pursuit of value judgments (the interests of law, the value of law, etc.) and the resulting laws are the product of extreme.

For its pArt, acts as a legal property system, its existence should be in our thinking and theories of Civil law environment for systematic thinking, logical system and value system from two aspects of thinking. Because the same pursuit of value, in a different way of thinking and different theories of the environment, may have different logical system will be the objective.

Second, the Property Act and the logical system
1. Property Acts and the principles of Public Credit
Public Credit is the basic principles of property law, the basic principle is based on the nature of property set. Because if we believe property relative to the absolute claims of property rights, control over, have on the world, involves the third people's interests, then the property should be publicized, and this publicity, once according to the legal way to produce a general credibility, that has to confront the pArties and the third person, including any person, including, this time before deciding on the property changes to take effect, which is the meaning of Marxist elements of effective publicity. This system is in Germany, Switzerland, the Netherlands and Taiwan adopted. Mainland China has adopted effective elements of doctrine, however, different countries and regions with the above, but not in mainland China recognition of Property Act, I believe that effective publicity elements of Marxism and the property has an inherent behavior closely, only the effective recognition of real right doctrine without recognition of elements of Property Act, will bring the entire system, lack of logic. To find out Theory of Property Act to analyze the various pArts of the relationship between the two.

First, the principle of separation (independence of Property Act) and Public Credit principles. The so-called principle of separation, which is recognized as a cause of behavior in the conduct of claims outside the property has a separate agreement. Right found desirable, there is a legal a question of fact, the existence of problems between the fact that, as mentioned above, is due to property and claims of legal tradition and the strict distinction between the concept of autonomy of decision. as private law, private rights in accordance with legal acts to achieve changes, the meaning must be expressed through the appropriate parties. this point, even in France, Japan and these countries do not adopt the behavior of thing as well. In "<French Civil Code>> which, without the existence of general principles of civil law, no property, and strict distinction between claims, so <<French Civil Code>> In the matter of human rights and the realization of the rights of the implementation of one doctrine, namely, human rights and property rights through a behavior, a meaning that - "Debt" achieved, to realize the debt will achieve the right thing. while also further illustrates the <<French Civil Code>> Why only in the use of publicity against the third person effect. and in Germany, Switzerland and other national law , there are strict distinction between property rights and claims. as a strict distinction between two types of private rights, its formation, change requires a different legal fact, for the purposes of legal action, it requires two separate intention. specific to the property , property rights need to change the meaning of said property, and the characteristics of the property, this means that a certain way must be objective, publicity, publicity and therefore means that the relationship of form and content, and only have a certain form, content can be achieved, which is to take effect condition doctrine publicity reasons. So we can say that elements of the principle of publicity as the force is based on consensus-based property, the Theory of Property Act is the proper meaning, but also carry the meaning reflect the principle of autonomy. The public notice of property law into effect only adopt elements of doctrine, rather than acts of mining property, removing the content, leaving only the form, it means the realization of the private right to the truth act, contrary to private law nature. Therefore, the adopted principle of publicity to force the elements of a separate property agreement should be recognized, because the principle of publicity as the entry into force of the elements of success is essentially a property agreement in the form of legal elements.

Second, the abstract principle and Public Credit principles. The so-called abstract principle, is the Property Act in its effectiveness and outcomes of not being dependent on its causes, independent establishment, that is because acts of rescission or cancellation does not result in physical performance of acts, of course null and void and revoked. Some people think that the independence of Property Act is a question of fact, without a value only because of the problem, and further that the recognition of the existence of Property Act does not necessarily lead to the recognition without Cause. but I believe that the principle of publicity is the Property Act and Public Trust the proper meaning of the theory, without public notice because of the fact that the logical extension of the principle of public trust, therefore, recognize the acts of non-recognition of their property without due civil law system is also difficult to ensure that the logic of self-sufficiency.

Public Credibility doctrine in a way can be called property obtained "consequentialism," because in this way under the principle of publicity of the property according to the legal change has to be respected by the general credibility, including the rights of indigenous people binding. that people need to know the results of property changes, without the obligation to investigate the reasons for changes in property rights, as long as there is no evidence to the contrary, people will be regarded as bona fide transactions dependent on the protection of public notice of the person, and this Property Act is the meaning of abstract principles. can be said that the Public Credibility is the Real Rights and the principles of the theory of technical prerequisites, and the premise of this technology is the embodiment of the correctness of Public Credit of the right to presumption of validity. the so-called right to correct of the presumption of validity are defined by their real property recorded in the Register of the rights of the parties to the content of property rights for the right to the possession of personal property rights of others possession of the correct principle. in any recognition of the Public Credibility as an effective element of the Civil Code, Public Credibility except for changes based on the effectiveness of property rights, the rights provided for all, without exception, the presumption of correctness of effectiveness, including China's <<the draft Property Law Draft>>. In "<Draft>> in the registration of real property and possession of movable property rights were provided for the correctness of the presumption, but in the third issue of the protection they use a different logic. According to <<comments issued>> the requirements for registration of immovable property, the presumption shall enjoy the right to register the name, and then trust in the good faith registration for the third party should be protected, including the right to confront real people, and here the good is only legal or the principle of good faith the validity of rights or the presumption is not due to restrictions in other words as long as there is no clear evidence that the malicious third person to have a clear presumption that goodwill. and this is a matter of contemporary German Civil Law the right meaning without Cause. Therefore, our property law <<Draft>> on the credibility of real estate registration and protection of a third person has reached a logical self-sufficient, and actually used in the behavior of real right non-sexual theory. However, in the real estate field has given rise to a logical problem. Property Law <<Draft>> also provides for the presumption of possession of a movable force, but the legislative intent on saying that this provision is to protect the interests of the person in possession, The protection of third party access to the system but otherwise in good faith. I think this problem in logic. First. real right as the basic principles of property law, real estate and personal property registration occupy the same manner as a statutory public notice, have the same credibility Therefore, logically in the legal possession of movable and immovable property registration should be treated equally in the protection of trade security, countries should have the same force and effect, China's Property Law <<Draft>> is discriminatory, there is logic undistributed; Secondly, possession of movable property the right to presumption of credibility is the embodiment of real right, possession of publicity as a way of statutory personal property shall be made generally of credibility, including the constraints on the real human rights, for the possession of publicity and good will rely on transactions with the third person in possession should be protected This is the function of the credibility of publicity, and this function is achieved through the force of the presumption of possession, and reached a logical self-contained, so according to my opinion, the possession of power may be presumed to some extent, protect the interests of the person in possession, but its main function should be to protect the security of transactions, which is also a function of material for production logic expression.

In view of Real Rights and Property Publication of the credibility of the logic, the paper that China should recognize the Real Rights, while according to the principle of good faith reason or no because of the effectiveness of supervision, to eliminate the malicious third party protection.

2. Property Act and the right to dispose of
No right to dispose of a long plagued the legal theory and practice of the system turns out to be legal on the wizard. However, because of problems of the right to dispose of the unknown "nature", but to ascertain the nature and the laws must be in a certain environment. Some scholars believe that China (Contract Law "> the provisions of Article 51 is the reference < <French Civil Code) the provisions of section 1599, which states that "other things to set up the sale and invalid." I believe that the temerity to use the <<French Civil Code>> to interpret the provisions of the right of action, may be logical in our civil law system is difficult to justify. to civil, the legal environment in China and France are very different. to property law, in property law the concept of a higher level, our country suffered following the German law tradition, there is a clear property rights and the conceptual distinction between claims and then claim a dominant power and distinction, however, only a French civil law concept of property rights, without a clear concept of property rights, there is no claim control over, and the distinction between the concepts, and "action" nature of the concept may be the logic of these concepts are closely linked. reposted elsewhere in the Research Papers Download of the successors of our civil law http://www.hi138.com German civil law tradition, there are claims of property rights and clearly defined property rights, the role of both the standard have the right to govern the division of rights and claims. dominance, refers to the rights holders have direct control of its subject matter, and has exclusive rights; claims refers to the right person for a particular behavior may require that the rights of others. Property rights (including quasi-property) is control over the claims are claims. In dominance, regardless of the property, quasi-property rights or other types of domination, there are one of the most important power is the disposition. The so-called disposition is to dominate the subject matter of the rights or the rights of the state itself (in terms of the quasi-property) for the "alienation, encumbrance (interpretation), change and discard", which includes property rights, claims, intellectual property rights of action. while the disposition of property rights is the subject matter of the rights of a particular state of alienation, encumbrance, changes and abandoned, that the effect on the occurrence of property law. and this is also the physical meaning of a punishment included the right to own (property itself contains the possession, use, income, sanctions four power). Therefore, since the concept of clearly defined property rights, a clear definition of dominance, like a particular place on both the right thing changes, there must be punished behavior. because only the disposition of the matter is the subject of the established right of disposition can be achieved only on the right to change the existing objects. So here is subject to property disposition, that is, Property Act. In German law, the burden of corresponding with the disposition acts, like credit and right corresponding to the request corresponding to the same power and domination. In fact, logically, there is a certain relationship between the three did. claim is human rights claims are claims, also are human rights, the burden is on the human rights behavior change in the state. People were a burden for their own behavior is intended to set an obligation, while generating a new claim, and no change in existing rights. So the burden of behavior, only involves the debt, which is the subject of human behavior rather than specific rights. behavior is a burden of debt behavior, the simple act does not occur on the property claims of existing rights changes.

It can be seen from the above discussion, because of China's civil law system in the higher level uses the concept of property rights and claims, and claim control over the strict distinction between the burden of the decision of the disposition and the existence of an act. For real right place change, there must be punished behavior (Property Act) from happening. and disposition, and the difference between the burden of behavior can be summarized as the following two points: ① due to disposition and control over the logic of the disposition of the subject to be specific, but behavior and claims of the burden due to the logic of relations, there is no such restriction; ② disposition since it is the subject (matter) existing rights, so the effect on both the right and a need to dispose of the elements, the burden of behavior human nature, no such restriction. Seen in this light, China <"Contract Law"> the provisions of Article 51, ratified by the parties, and the burden of behavior can not be interpreted as contracts for the sale as valid, but should act as an effective disposition of the property, which is the civil law system of the decision.

Third, behavior and value system of property rights
1, the principle of separation (independence) and Autonomy
Private autonomy is the maximum value of the expression of civil society, the spirit and concept of civil law, is the highest principle of civil law. Other principles of civil law is the autonomy of private law but subject to it. And we all know, legal theory is focused on the principle of autonomy of private law expression. that is recognized by legal system is willing to legally effect means that, to achieve autonomy in the civil subject, and the self-responsibility in the acts themselves and the protection of the premise. recognized the principle of separation, it recognizes behavior independent of the Property act as a cause of the existence of claims act. recognized legal private rights of property as the role of the field. Some people think that the independence of Property Act is only a question of fact, that describes the problem, I can not agree on this . the real world of legal materials in which the abstract concept of law, then the concept of the normative, rather than a pure question of fact, description of the problem, but with the normative, value. Property Act as well. Property Act is a real life process of abstraction, and as a normative concept of law and is the highest value of civil law - the area of ​​autonomy embodied in the property.

2. Abstract principles (non-sexual) and transaction security
Behavior of the principle of distinction in the property and the relationship between abstract principles, I believe that of course recognize the principle of distinction is the recognition of the basis of abstract principles, but recognize the principle of distinction does not necessarily lead to an abstract principle. The principle of distinction can exist independently, and the abstract principles a value choice. modern civil law recognized that the main function of an abstract principle is to protect the security of transactions, and good access to the system as opposed to, which is a civil law system in which transaction security in the protection of property is taken or the behavior of the abstract principle of good faith get system is a measure of interest and institutional arrangements. I view this not as simple disagree. the issue should be made to re-examine the nature of good faith. I believe that the property acquired in good faith and the principle of Public Credit There is a certain logic , changes in property rights acquired in good faith concerned, which contains the desired property changes the core elements of this legal act, but in which the act in good faith by the assignee of the grantor's right to dispose of replaced, so the acquisition in good faith in nature should be a legal act (Property Act). However, property acquired in good faith as a special act, the effect of changes in the property has not been ruled out on the cause of behavior. As mentioned earlier, this is only the principle of publicity of the partial reflection of public trust. under the Civil Code the relationship between form and content, problems in logic and is not well done then the realization of the value. In fact it is. in good faith to obtain the limitations of the system itself, such as his by right action is required the meaning of the original property and the possession of persons subject matter, which greatly reduces its scope of application, on the other in the grantor has no right to dispose of the right shape and the assignee is protected under goodwill ill. Mining Real Rights theory because it seems more in line with civil law system of logic, the principles of Public Credit is fully reflected. but with no result but was shut out in our theory. The main reason is nothing more than the following two points: (1) without cause Theory of malicious third party can be protected; (2) No theory on the seller because of the unfair. at this point, can be attributed to the shortcomings of autonomy, and good faith of modern civil law has become a "king clause" of the autonomy a comprehensive revision and supervision. non-sexual theory is no exception. As <"German Civil Code>> Section 932 provides:" Even if things do not belong to the assignee, transferee because of section 929 can also be provided to and become the owner, but in its title under the above provisions were not made except in good faith. "which precludes the assignee's protection against malicious, which is the design of modern civil law system, the proper meaning. For the second point refers to the subject matter is nothing more than transfer of ownership, the seller found acts withdrawn or invalid because the case of property not subject to claims for acts of behavior, it is the buyer's ownership of the subject matter is still made, the seller can only be in accordance with the provisions of unjust enrichment, to request the return they take delivery of the benefits requested by the property which the seller reduced the status of persons who claim the status of the request. If from the pure theory may be unfair to creditors. But in the modern society, dominated by the concept of the modern civil law, this is also the so-called unfair do not care. Because modern society is mainly the value of the exchange value, rather than the thing itself of value, it is in this context, my wife-wing Japanese scholars come to the conclusion of debt in a superior position. This means the ownership to a large extent has become a concept of rights. people the enjoyment of property interests can often be replaced by money. and then return from the unjust enrichment claim in nature, in accordance with the provisions of civil law, improper the return benefit is a variant of original or original (based on the value of the material produced). Under this rule, and the assignee if there is no original bankruptcy case, the seller can request the return of original , the seller of such Claim and Petition in effect is the same. controversy is not present or if the original is in the case of insolvency of the assignee, the seller can only request things of course, a variant of that the monetary claims. So, I think, no theory on the seller because of the attitude concept in modern society under the influence, not really causing injustice. Thus, from the perspective of value judgments, not because there is no theory abandon reason.

IV, Conclusion
As can be seen from the above analysis, both from the perspective of logical system of civil law, or from the perspective of the value system, our property law system in the codification, not respond to the shut out. Ultimately, this is our country's Civil Code determined by the environment, just as some scholars have pointed out, the mining property act theory is the most fundamental reason for China's civil law concept of property rights and claims related to the strict distinction. Therefore, in the Codification of the process, from China reality, not just parroting! Links http://www.hi138.com Research Papers Download