Preliminarily Probe Into The Theory Of The Action Of Right Over Things

As the theoretical foundation of system of change of real right, theory of juristic act of real right is created by civil law of Germany. As for this theory, civil law of Japan hasn't definitely adopted it, while the civil law of Taiwan area of our country has wholly inherited it. In China the theoretical circle hasn't attached importance to theory of juristic act of real right in a long time, and it is until the beginning of 1990s that civil jurisprudential circle has really begun to study on theory of juristic act of real right. "Contract for sale of housing shall be invalid without being registered," which once is an undoubted rule in the 1980s to the beginning of 1990s. Its substance is to put act of register and act of contract into together, and not to differentiate the difference between them. This kind of rule that validity of contract depends on if it is registered or summoned in public has gradually been criticized and challenged. Hereafter, in judicial practice act of register and act of contract has been differentiated day by day to balance and protect interests of contracting parties, that is to say, contract for sales of housing without being registered shall be valid too. And this conclusion is gradually accepted by practical circle.Theory of juristic act of real right divides act of sales from act of register, or with the evidence that assignment of real right of immovable property needs to handle registration, or with the evidence that register of transfers of house property doesn't influence validity of sales contract, with which it can be proved that juristic act of real right actually exists in our country or the legislation and practice of our country accept theory of juristic act of real right. There is the necessity of studying it in practice. Therefore, the author chooses theory of juristic act of real right as title, and hopes that the probe intothis question will be beneficial to civil legislation and judicature; in the aspect of construction of civil system, the study on juristic act of real right will be favorable for design of specific systems of law of real right.On the basis of comparing and analyzing independence and abstract of juristic act of real right, the author defines the content of theory of juristic act of real right. Furthermore, the author compares and analyzes the legislative models of change of real right in France, Germany and Switzerland to hold that our country shall adopt the compromising model. Theory of juristic act of real right has its unique value, so the legislation and judicature shall persist in the independence of juristic act of real right, but limit abstract of juristic act of real right in certain degree.