The Real Right And The Obligatio Creditoris

This paper mainly to study the relationship of the real right and the obligatio creditoris. It cannot be established that the so-called dual rights system of the relationship of the real right and the obligatio creditoris in Chinese academic field, as this theory in violation of the formal logic. The academic circle limits the real right and the obligatio creditoris within the property law, and regard both as binary constituent elements of property right system, even look the two rights parallel with binary opposition. This thought is in violation of the basic legal relationship of social life. This paper argues that to inspect and use the relationship should cover all the scope of the civil law system, and should not only limit the relationship within the property law, and should not regard the real right and the obligatio creditoris as binary elements of property right system either, personality right, real right, intellectual property right are substantive rights and the sources of power overall the civillaw system. At the same time, all have to contract and tort, unjust enrichment and negotiorum gestio obligatio and the obligatio creditoris. Between the relationship of the real right and the obligatio creditoris, the real right is the goal of civil society which subject to pursue, and the obligatio creditoris is the legal means to implement or relief the real right. The nature of the real right enjoyed by the holder for a particular item management, with its essence is right in rem, a kind of substantive right, has a dominant and absoluteness power of the world; And the nature of the obligatio creditoris is the right of claim to a particular person, with its essence is a kind of functional right, right in personam, and the relative power. Continental law system and the Chinese legal system are two different jurisdictional law system grew up in the different environment, and there is the fundamental difference between the concept of obligatio of the West and debt of the East. The obligatio of the West is a civillaw relationship between two particular persons, and the debt of traditional legal culture in our country is a kind of local legal resources which is the pecunia or money the debtor shall be repay creditors. To investigate and comparison the relationship should be with objectively, dialectically, and with the generally-linked philosophy idea on all kinds of creditor’s rights and all kinds of real rights.Multiple meanings maybe result with researching the relationship of the real right and the obligatio creditoris. First, from clarify the relationship, it could provide clear logical texture for the establishment of the relevant legal documents, and could eliminate the barrier factors related to academic research and civillaw legislation. Secondly, it could provides the basis for the qualitative and positioning of some related rights. Thirdly, it can help straightening the basic theory of property law and the civil law system, to create favorable conditions for the regulations of special civillaw, it may also help for the structure of the civil code compiling.