| In the region of law there is a distinction between "public law" and "private law". Here I have no intention to discuss what the standard for the distinction is, and I just want to say, as we known, the most important and most basic law in the system of private law is civil law. Civil law is the foundation of private law. Lack in some basic knowledge of civil law and some conceptions derived from these knowledge, we are hard to gasp the other rules of private law, no mention to use the rules to clarify the legal relationships between private persons. As a result, how to build the basic conceptions of civil law has become an everlasting topic concerned by many scholars, even the most part of law circle.One aim of civil law is to confirm and protect right which is a central conception through civil law's formal frame. Substantively civil law system is a system of rights and the rights are the elements of civil law system. Civil law is a right law. As a central conception through the whole formal frame of civil code, rights including personal right and property right have or generate certain right of claim (Anspruch) to request others to do or not do something, in order to meet its needs or maintain its completion. Claim of right can be called the hinge of right system. So the right system of civil law can be refracted to be a right system of claim accordingly. Right of claim is an important legal method to turn autonomy of private law into realities and is the core of and the key to the systematism of civil law rules. Not only it does this, but also it is the bridge and ligament of public law and private law.There has been a history of more than 100 years since a German scholar named Windscheid created the conception "claim of right". The scholars of all country make a deeper and broader study of "claim of right" and many states prescribed specified the system of right of claim in civil code or code of civil procedure. However, since right of claim is not an inherent conception and system of civil law, there is still a long way for people to clear the theoretical position and value of right of claim which is a comparative fresh theory step by step on the objective law of theoretical creation and truth-seeking.The system of right of claim has not received what it should be deserved in the main land of our country. Firstly, as for the legislation, not only the current General Principles of Civil Law but also several civil law drafts drew up by the connected departments of government and scholars lack in the general description of right of claim. Even if some designs of the specified systems mentioned the problems of right of claim, the words covering it are too little in piles of drafts. Secondly, on the standing of theoretical study, we see that the time for the scholars in main land to make a research on right of claim is comparatively late, and the researches rest on the simple comprehension of the conception of right of claim, leaving little room for the main topic of basic theories of right of claim. Therefore, today, when we are about to prescribe a china-featured civil code heading for the 21st century, we should make a deep analysis and discuss about the principle theoretical problems of right of claim in civil law, which is significant for us to enrich and improve our civil law theory, to be well prepared for constituting our civil code, to perfect our civil legislation and to direct the judicatorypractices. So this thesis concentrates on the topic of the basic theories of right of claim in civil law, and does do a deep and systematic study of the status in quo and the legislation of some topical countries with the historical, comparative, systematic and demonstrationai researching methods.This thesis is constituted of three parts: induction, text, and conclusion.INDUCTIONThe induction part works on the theories, the foundation in realities and the value of the study of right of claim, and then gives a brief induction to the thesis's study methods and main frame. First, right of claim is a basic conception in civil law and a hinge conception of civil rights system. Then the focus of this part shifts to several main issues including those have been existing in the theoretical study and those should be shed some light on, such as the theoretical orientation and the essence of right of claim, the categorization of right of claim, the transferability of right of claim, the relationships between right of claim and extinctive prescription, concurrence of rights of claim and so on. Following this, this thesis concentrates on the topic of the basic theories of right of claim in civil law, and does do a deep and systematic study of the status in quo and the legislation of some topical countries with the historical, comparative, systematic and demonstrationai researching methods. Furthermore, this part makes a brief explanation for the meaning of this topic: the aims of this research are to build a scientific theoretical system of right of claim, to provide some theoretical reference for the institution of civil code, to joint the substantive law and procedure law, to give a reasonable definition for the ambit of the substantive law's and procedure law's tasks and to supply some useful suggestions for the judicatory practices of our country. Finally, a brief narration is given to the citation and collection of the materials.TEXTThe conception and the history evolution of doctrines of right of claim have a realistic value and play an important role in the research of the basic theoretical issue of right of claim. On the basis of the definition of right of claim's essence, it is possible to give a legal analysis to the detailed connotation of right of claim under which we can go further to categorize the right of claim and then draw out a portrait of right system of claim's frame. Right of claim, an independent substantive right, is involved in the issues of its transferability, the time limitations for the exercise of right of claim which is just the relationship of it and its limitation of action and the concurrence of the rights of claim which are both doctrinal and realistic. All of these issues are worth a further and detailed reasoning. Based on this logic cognition, the text is divided into seven parts respectively dealing with the conception and the history evolution of doctrines of right of claim, the essence of right of claim, the legal analysis of right of claim's conception, the categories of right of claim, the transferability of right of claim, the relationships between right of claim and limitation of action and the concurrence of rights of claim.CHAPTER I The Conception and The History Evolution of Doctrines of Right of ClaimWith a historical view, this chapter probes into action and right of action in Roman Law, the right of action in the Procedure law of France, the establishment and evolution of the conception of right of claim in the common law of German, the evolution of the theories of right of claim after the release of the Civil Code of German, the doctrines of right of claim'sconception in Japan and the doctrines of the conception of right of claim among our country's scholars.The conception of "right of claim" in the contemporary civil law is come up with by Windscheid, a Germany scholar, when he was investigating into "actio" in Roman Law. So the study of right of claim should begin with the "actib" in Roman Law. The "actio" in Roman Law is translated into "action" or "right of action". But the "right of action" . mentioned here is not equal to the "right of action" in the contemporary procedure law. The "actio" in Roman Law is a right to qualify one person to acquire what he should have. As far as the right of claim and right of action in the contemporary law are concerned, the conception of right of claim is contained in the "actio" in Roman Law which is a combination of right of claim and right of action in the contemporary law.Behind the Roman Law, the law affecting heavenly the revolution of the whole world's laws is the laws of France. On the basis of inheriting Roman Law, substantive law was dispatched from procedure law in the laws of France. But there are not any rules about specific definition of right of claim's conception and specific prescription of the system of right of claim. In order to build a bridge between the substantive law and procedure law, the French law still adopted a traditional way in the Roman Law of protecting the civil rights by confirming right of action. With a intent to surmount the malpractice of the system of right of appeal in the French law and settle the limitation problem of specific right of appeal, the Procedure Law of France categorized the rights of action scientifically and created the abstract system and theories of right of appeal which pave the way for the formation of the theories and system of right of claim.During the evolution of several hundred years, the "actio" system in the Roman Law has been inherited gradually by the "common law" of German. This course began with Savigny who created contemporary private law system through the instigation of the Roman Law. He had tried to peel the right of claim in substantive law off from the "actio" in Roman Law, but he didn't clearly dispatch the independent substantive right of claim from procedural right of action. So the actual man who opened this field is Windscheid. Breaking away from the old knot in Roman Law that there is no distinction between procedure law and substantive law, he gave a fresh meaning to "actio" and developed it to be the right of claim in private law that was induced into the system of substantive right later and became the former conception of "right of claim (Anspruch)" in the contemporary civil code of German. After Windscheid's fresh opinion about actio being widely agreed, the following scholars got some new ideas of the conception of right of claim and went on to purify and develop it. In this period people got to admit the right of the real claim generated on the occasion of the real right being invaded. But there is no definite explanation for the distinction of right of claim and obligatory right. The traditional opinion of the right of action in private law that the right of action is the extension of right of claim shift to argue that we should draw a line between them with the opinion of the right of action in public law rising.Under the effect of Windscheid's opinion, the Civil Code of German in 1900 prescribed the rule of right of claim in article 194, item 1 in the chapter of general principle which regards "the right to request someone do or not do something" as the normal content of right of claim. However, this rule became the main issue of heated discussion and arguments, after the Code was released. In general, the views of right of claim hold by Germany scholars arethat right of claim is originated from the real right and obligatory right. In order to maintain, satisfy and implement those rights, right of claim has a attribute of instruments and techniques. But it is not in the same level of those rights. They also consider the right of claim as a right that have a possibility to be implemented in judgments without which a right will be one having no right of claim. Other scholars take a future attitude that there is no necessities to consider of the nature of rights which are the foundations for the right of claim. Right of claim just shows us the orientation towards someone and it is a proper conception for the right qualifying the requests towards specified person in-or-out judgment. Furthermore one view, hold by some scholars, taking right of claim as one function of right is not achieving most of the scholars' supporting. In brief, the conception of right of claim is widely considered to be a general title for "the rights qualifying one person to request someone else to do or not do something".On the topic of the conception of right of claim, the civil law of Japan, a member of the continental law system, hold a semblable opinion. Although there is no specific definition of right of claim in the Civil Law of Japan just as in the Civil Law of German and it is not frequent to use the terms of "right of claim" in the articles, many scholars agreed that right of claim is a right qualifying request specified person to do or not do something, which reveals the relationships between right of claim and substantive law. On the issue of the relationships of right of claim and rights, especially obligatory right, Japanese scholars have various ideas. And the general opinion is that, different from the other right (obligatory right), rights of claim includes the right of claim in the law of real right and that in the identity law besides the obligatory right (the right of claim of obligatory right), although right of claim is the core of the obligatory right.Regarding the same topic, nearly all of the civil law scholars in Taiwan consent unanimously that right of claim is a right requesting someone else to do or not do something. Some of them argued that the obligatory right is different from right of claim with the reason that the essence and content of the obligatory right is to receive the payment of debtor validly and the qualification of creditor to request the payment form the debtor is resulted from the additional effects of the right of acceptance of payment. Some firmly believe that in fact the right of claim is one function of rights other than right. Touching the relationships of right of claim and right of function, all the circle approve that right of claim and right of function are not the same one because the former is a private right while the latter is a public one. The General Principles of Civil Law in 1986 didn't absorb the conception of "right of claim". In the theories of civil law, our scholars always define the conception of right of claim, when touching the categorization of rights on the standard of the functions of rights, as one right asking someone to do or not do something. For the relationships among right of claim, right and right of action, our scholars share the same views with Taiwan's and did not go further.CHAPTER II. The Essence of Right of ClaimThe essence of right of claim mainly refers to the substantive law nature of right of claim and the independent position of right of claim in the system of substantive law. So this part will demonstrate the essence of right of claim from two standing points: the relationships of right of claim and right of action and those between right of claim and its basic rights.As for the relationships of right of claim and right of action, this chapter begins with various doctrines of right of action in both the internal and the external.The foreign doctrines of right of action generally include the doctrine of right of action in private law, the doctrine of right of action in public law and the doctrine of right of action in the complex of private law and public law. In short, the doctrines of right of action in private law deem that right of action, as a private right or substantive right, is just a part of the right of claim belonging to the parties. Because of many limitations in this doctrine and developing of the society and law, this doctrine became out of date and finally went out of the historical stages. People began shift to the new doctrine— the doctrine of right of action in public law which confines the right of action to the ambits of public law and makes difference between the right of action and the right of claim that is in the ambits of private law. The author also agrees with it and thinks it is reasonable and positive. In the view of the doctrine of right of action in the complex of private law and public law, this thesis shows some points as follows: first, on one hand the right of action in this doctrine have no business to civil right (as for the right of action in procedure), on the other hand it also is a civil right at certain stage or a right to win a lawsuit (as for the right of action in substance). It is obvious that this comprehension make messes among the meanings of right of action. Secondly, this doctrine defines the right of action in substance as "a civil right at the stage of compulsory enforcement" or a right to win a lawsuit. The former regards the right of action in substance as the right of claim, neglecting the distinction of right of action and the right of claim which is a substantive civil right. This view betrays the basic principles and probably leads to a mess in practice. In according to the latter, the person taking civil rights may win the lawsuit and who wins the lawsuit means who takes the right to win a lawsuit, so who takes civil rights must be takes the right to win lawsuit. On one side this inference breaches the judicatory practice; on the other side, the conception of "right to win a lawsuit" is not scientific. Because wining a lawsuit is just one result of the proceeding, it violates jurisprudence and practice to deem obtaining this kind of result as a prescribed right of the litigant participants. Therefore this thesis clearly states that wining a lawsuit is not a prescribed right and there is no foundation for the right to win a lawsuit.In our country there mainly have two kinds of doctrines of right of action: the monism and the dualism. On the relationship between right of action and right of claim which is a substantive civil right, one opinion of the dualism treats the right of action in substance in the meaning of right of action as the right of claim, which have some deficiencies just as the doctrine of right of action in private law and the doctrine of right of action of the complex of private law and public law shows. The other opinion counts right of action as a right in public law or a right in constitution law, which distinguishes right of action from the right of claim in private law. Nowadays the legislation practices have accepted that both substantive law and procedure law are independent branch laws. Under this situation, the author considers this opinion reasonable. Although the monism has not been a popular doctrine, the author approves that right of action, as a procedural right, is distinguished from the right of claim which is a substantive civil right, while not deviating the substantive rights and interests at all.By light of the critical narration of the relationships between right of action and the right of claim which is a substantive right in the various doctrines of right of action in both the internal and the external, the author came to a conclusion that no matter how to define the meaning of civil right of action, the right of action, whose meaning has been involved in the relationship of it and substantive civil right, is a problem of protecting civil rights. So eachdoctrine must give a direct or indirect answer for their relationships. To learn the relationships between right of action and the right of claim which is a substantive civil right correctly, the first thing is to affirm the mentioned two rights are totally different. From a historical view, the right of claim developed with the developing of various doctrines of right of action. In the beginning right of claim and right of action, are in the same boat; then they dispatched gradually; finally they became independent of each other, which has been prescribed in the substantive law. This evolution history is enough to illustrate that right of claim, a right in substantive law, should belong to the substantive law and is distinguished from the right of action in procedure law in essence. On a viewpoint of relationships between substantive law and procedure law, the both constitute two necessary legal system in the contemporary branch laws and also establish a double-deck frame to protect rights. The substantive law with a core of prescribing rights-taking emphasizes the autonomy of private law and is in the ambits of private law; the procedure law with a goal of protecting rights emphasizes the intervention of government and in the ambits of public law. Hence the right of claim belonging to substantive law and the right of action existing in procedure law, with different notions and values, are in two obvious different legal ambits, embodying different meaning of right. After all, we can't regard the right of action as the right of claim. Otherwise we will deny the right of claim's position in substantive law or deny the reasonability of the existing of right of action.Concerning the relationship of right of claim and its basic rights, this thesis make a comparative study of right of claim and its basic rights including real right, obligatory right, intellectual property right, right of personality, right of identity and so on.Firstly, with regard to the relationships between right of claim and absolute rights such as real right, intellectual property right and right of personality, this thesis makes detailed investigations and discuss with an example of the relationship between right of real claim and real right. The nature of right of claim is at issue in the theory circle where dozens of doctrines are cram-full, for instance, the doctrine of real right, the doctrine of obligatory right, the doctrine of non-pure real right, the doctrine of right of claim as a result of the effect of real right, the doctrine of right of claim derived from real right and the doctrine of independent right of claim. Based on a series of critiques and analysis on the above doctrines, some conclusions was made that: the right of real claim is a independent right of claim, other than real right, founded on real right; the right of real claim, as an independent right, has its own conditions of generating, functioning and perishing and its own independent meaning; as we known that real right, intellectual property right and right of personality are absolute rights, so the right of claim based on absolute right, for example right of intellectual property claim and right of personality claim, is an independent right founded on such absolute rights as intellectual property right and personality right. They are different form their basic right in the conditions for generating, purposes and functions.Secondly, the relationships between the right of claim and obligatory right are commentated by the various doctrines in traditional theories, such as the doctrine of obligatory right, the doctrine of effects or the doctrine of function and the doctrine of independent right or the doctrine of remedies. With the critiques and analysis of the mentioned doctrines, this thesis points out that the essence of obligatory right should be confined in the sight of the doctrine of rights and interests which sticks to that the essence of obligatory right is to acquire and maintain the interests of payment while right of claim is justa tool to actualize this purpose. The essence of obligatory right is right of acceptance other than right of claim because obligatory right cannot be achieved without implementing the right of acceptance, while the essence of right of claim is a right qualifying the person taking this right to request obligor to do or not do something. In the relationships between the right of claim and obligatory right, the right of claim is closely related to the obligatory right while its conception, essential meaning and extension of application totally are different from the obligatory right. The two rights are generated as a result of categorization of rights on different standards and standing-points. In the whole civil right of system, right of claim is an independent civil right of obligatory right.Thirdly, as for the relationships between right of claim and right of identity, this thesis illuminates that although there are many rights called "right of claim" in the family law, only the foster rights among families is in the ambits of the right of claim in civil law. The foster rights among families originate naturally from the existing rights of identity among families, which is different from the case that the right of claim based on absolute rights, such as right of real claim, is generated only if it was invaded or would be disturbed. Furthermore, although the foster rights among families have close and unbreakable affiliations with its basic rights-right of identity, the former and the latter are not the same conception and are independent of each other. The conception of right of claim is the result of categorizing rights at the angle of rights' functions and the right of control is its corresponding conception. The conception of right of identity is the result of categorizing personal rights at the angle of rights' meaning and effect and the right of personality is its corresponding conception. Consequently, the two rights are the results of different categorizing of rights from different angles.Finally, the above analysis shed some light on the right of claim: although right of claim comes out from its basic rights, it, as an independent right, is not a conception the same as its basic rights. The two rights are the results of different categorizing of civil rights from different angles. So we must distinguished them clearly and confirm the independent position of right of claim in the right system of substantive law.CHAPTER m. Legal Analysis of the Conception of Right of ClaimThe author began this chapter with a legal confining of the essence of rights. After making some comments on various doctrines about the essence of rights, the author generalized some main features of rights which are one of the basic legal categories: free wills are the inner energy for rights' existence; interests are the material foundation for rights' existence; free actions are the forms of rights' existence; rights originate from law. In view of these features the author defined "right" as "certain free action" which is prescribed or hides in rules; which is actualized in legal relationships; which the subject can control on his own will and whose propose is certain interest.Then some analysis and discusses are arranged here on the issues of the definition, features, significance and basis of right of claim. In the sight of the author, right of claim is certain free action which is prescribed or hides in rules; which is actualized in legal relationships; which the subject can control on his own will; whose propose is certain interest and which qualifies someone to request others to do or not do something. Following this, the author shows that right of claim as an independent civil right is endowed with some essential attributions of right; it is a relative right, arising in counterparts; it is a right building a bridgebetween substantive law and procedure law; it is based on real right, obligatory right, intellectual property right, right of personality, right of identity. Right of claim makes a core role in the whole civil law, covering the whole civil law system. The establishment of the conception of right of claim is significant for both theories and realities: to ensure and facilitate the implement and achievement of civil right; to make for systematization of civil rights and improve the systematic of civil law; to strengthen the spirits of autonomy of private law and help the parties to actualize the autonomy of private law; to bridge right and prescription and establish the applicable confines of the system of limitation of prescription; to bridge and partition clearly the substantive civil law and the civil procedure law and clarify the substantive states of rights before proceedings in case of being invaded; right of claim also has a function to contain legal norms. In addition to the above mentioned, the author set forth that we can observe the basis of right of claim from various angles: in the sight of the original of right of claim, the basis is the corresponding basic right; in the sight of the legal criterion for the birth of right of claim, the basis is specific legal norms.In the end, to repute the idea that right of claim is corresponding to civil liability, the author came up with some well-founded opinions. As we known there is a dialectic relationship between right and duty which means no right no duty and the otherwise is. So the correspondence of civil right should be civil obligation other than civil liability. At first, in order to illuminate it, the thesis analyzed the nature of civil liability mainly explained by three kinds of doctrines. Under the doctrine of obligation, civil liability is equal to civil obligation; so in light of the dialectic relationship between civil right and civil obligation, right of claim as an independent right should be corresponding to the civil obligation of the counterpart, even if we say the right of claim is corresponding to civil liability. As far as the doctrine of consequence is concerned, the direct consequence of unlawful action's happening should be that laws endow the victim with right of claim and impose obligation on the lawbreaker instead of the civil liability arising immediately. If we must secern civil liability from civil obligation, this thesis accedes to the doctrine of sanction which emphasize the governments' intervenes. So it is hard to say the civil liability in this sense is corresponding to the substantive right of claim in private law. In the second, the author furthered to clarify his idea from the angle of the civil legal relationships. The essence of civil liability is "sanction" which means illegal action must incur the sanction imposed by public right. So we can say civil liability is enforceable which embodies the governments' intervenes in civil life and reflects the relation between the government and the private persons. On the contrary, the civil legal relationships existing among the au pair civil subjects is discretionary because it embodies the private interests and then civil subjects are given widely rights of autonomy by law. As a result it is obvious that the civil legal relationships and civil liability are in different ambits. Therefore civil liability is not the element of civil legal relationships. The civil legal relationships are constituted of three elements: subject, object and content. The content means to the civil right and civil obligation of civil subject. Since right of claim is an independent substantive civil right and its holder is a civil subject in the ambit of private law, it can be considered as a part of the content of the civil legal relationships. Consequently we can infer that the corresponding conception to civil liability is civil obligation. In the third, in the sight of the features of right of claim based on absolute rights, this thesis made a comment on the provisions concerned with the manners of civil liability in our current General Principles ofCivil Law and demonstrated the idea again. The critique and analysis on the provisions concerned in our current General Principles of Civil Law were carried out from various viewpoints—the protection of legal interests of right-holders, the thinking discipline of the basis of right of claim, the constitutive requirements of the right of claim based on absolute rights, comparative law, the transplantation of law and so on.. The author set forth that it is not proper to regulate the ceasing of the infringing act, exclusion of hindrance, prevention of interference and restitution of property as the forms of civil liability in the General Principles oftCivil Law. Lastly this thesis criticized the manner of legislation on civil liability in the General Principles of Civil Law with a reason that this manner displays too much intervenes of government power and impairs the spirits of private law. With the socialist market economy rapidly developing, the legal system and notions of our country has being changed a lot and will return to the agreements with economy disciplines, the definition of personal rights and the encouraging of free enterprising. The system of right of claim is just the concentrated embodiment of the spirits of the Roman Law. In short, right of claim, as the core of civil right system, is corresponding to the civil obligation of the counterpart. The right of claim and the corresponding civil obligation constitute the civil legal relationships to make sure the parties' jural relations. Therefore, in the constitution of the system of civil law, we should build the system of protecting and actualizing civil rights with a core of the... |
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