The Logic Of Relative Ownership In Private Law

The concept of ownership in law associated with the concepts in the fields of philosophy, politics and economics, but is also different from the concepts in these fields. The concept of ownership relates to many aspects of people's life. We should analyze the concept of absolute ownership in modern private law, search systematic innovation of the institution of modern property law and do this research according to logical and historic coherence in order to find out the rule of evolution of ownership concept from the historic perspective. In order to analyze the rule of relative ownership in private law, we should use the methods of historic analysis, economic analysis and cultural anthropology.In the first chapter, we review the historic character of absolute ownership in modern times and analyze the conception of absolute ownership from the angle of historic perspective. The historic character of ownership manifested evolution and rectification of conception. It originated from Rome law and grew up the liberal ownership of modern private law, the conception of absolute ownership. Because of the different background the ownership in German law and China feudalistic law manifested its realism. In the era of liberal capitalism, the concept of absolute ownership plays a dominant role and other property rights is the result of separation of ownership and its utility but it actually ignored the realism and social character of the ownership. The separation of creditor's right and ownership made the social character of private law belong to contract merely. Ownership has never been absolute but always relative and the relative character varies with the change of economical condition. The law of ownership in traditional civil law gradually grew up from commentary school, adapted to the development of liberal capitalism and stressed absolute ownership to the tangible property. With the passing of the days, the conception of liberal absolute ownership could not adapt to the reality when the liberal absolute ownership was restricted.In the second chapter, we discuss the object of ownership on the evolution of the conception of ownership. The classification of ownership's object is the premise of the construction of the system of ownership. With the developments of society and economy, it is necessary to classify the object of ownership, renew the definition of the ownership's object and change the notion that the object of ownership was confined to tangible property. The development of object of ownership represents the trend of value. In the classifications of the object of ownership, the classification that classifies property into chattel and real property is the most important one since the Rome Law, the theory of property law and legislative system was constructed based on this classification. But with the development of the society, many new objects of ownership come into being. The classification of chattel and real property could not adapt reality and had to be rectified. The logical frame sometimes should adapt to the reality. The classification of chattel and real property presents a trend of interleaving and assimilatory. The economic of knowledge overthrows the traditional conception of property and conceives a new conception, knowledge = wealth. At the same time, the institution of ownership varied and intangible property should not be limited to exception of the institution of ownership. Intangible property already became the property that should not be ignored in addition to the character of tangible. There is no space for intangible property in traditional law of ownership, but in the institution of modern law the intangible property has become the object of ownership. In the third chapter, we analyze the turning of the conception of ownership and its content. The institution of property in Anglo- American law has an influence on the conception of ownership in civil law. The institution of property in Anglo- American law is adapt to the economical development and expanded. The accepting of conception of relative ownership accorded with the mode that people treat new theory. The ordinary mode that people treat new theory is: people refuse it first and when they can't refuse it, they conclude that it existed in ancient time. We put forward the historical necessity of the formation of the conception of relative ownership and its difference from other conception of ownership in history. There is no realistic property dominated in the relative ownership but the value of object of property is dominated exclusively in conception. It developed the useful and discarded the useless in the conception of modern private law and made use of and dominated the value of property but not all the property. In contrast to theoretical renew of conception of ownership the work of the legislation of property law is less and there is few corrections in the code of many countries in civil law. The legislators corrected the words that embodied the absolute property and property right decided by law strictly. In 20th century the legislators have been done this work in correction of code of civil law but the new institution lack logical explanation in theory. On the conception of relative property, there is space for the property law decided by law and autonomy of the property in modern property which is conflict with the thought that internalize the exterior cost. The restrictions of the ownership are the provisions of public and private laws to free it from the conception of"absolute ownership". The idea of using resources in effect and successive development are introduced to the construction of the institution of the property right, which embodied the idea of efficiency, and explained the theory that restriction to interpreting the ownership in effect is the conflict among rights, rather than socialization of ownership. In the fourth chapter, we discuss the extensive interpretation of the conception of relative ownership. In the context of absolute ownership dominating the legislation, the development of interpretation of civil law is one of the motives of the conception of relative ownership. The interpretation of civil law is primarily upon the concept of value, that is to say, it is not possible to restrict the developing social reality by existed theories, but to judge how the theory can adapt to social reality, on the base of resolving of some practical issue, to construct the institution of property right the center of judgment. The institution ownership must be restricted by economic contexts; different ownerships have different characteristics, so we must analyze the influences on institution of and rights of ownership, especially in the institution of public ownership. The conception of relative ownership is more reflective and active in interpretation of civil law, but the motives have some regularity. Moreover, the adapt of relative ownership to social and economic development is appeared that the system of property rights is excellent after assimilating the advantages and abandoning the disadvantages of ownership's priority in private law in Continental recently, and making ownership equals to other property rights, and constructing the new and open system of the other property rights.