On The Relativization Of Numerus Clauses Principle In China

The property rights` statutory principle, established by the Property Law, whose limitations in practice have already embodied evidently, has the necessity of existence. Thus, on the basis of committing to numerus clauses principle, we need to perfect the principle by relativization to meet social and economic development. The essay is constituted by the introduction, body and conclusion. Body is divided into the following five parts:The first part postmortems the theoretical and practical obstacles of our Property Law Article 5. The section firstly affirms the appropriateness for our Property Law to establish numerus clauses principle, and secondly proposes the main problems in the application of the Article 5, including the limitation of private-law Autonomy, confliction between the"law"of property statutory and justicature, the principle`s hysteresis, the unconductivity to full efficiency and so on, through case analyses and literature citations.The second part analyzes the reasons and performance of numerus clauses principle. The section gives a comprehensive analysis of the principle`s limitations in history, theory, practice, etc. The limitations in itself result in the necessity to perfect numerus clauses principle.The third part studies the relativization methods of numerus clauses principle. The section firstly takes some integral introduction to, as well as the feasibility of the relativization methods of numerus clauses principle in the theoretical circles currently, and proposes solutions to the limitations of numerus clauses principle on the basis of comprehensive consideration. Secondly, the setion studies the practical experiences in major countries and regions of the two legal systems, and sums up some practices for our reference.The fourth part defines the relativization of numerus clauses principle in our country.This section gives a briefly analysis of the principle`s definition including numerus clauses of species and contents, on the basis of which gives preliminary definition of the relativization of numerus clauses principle by means of two relativizations of the property rights` species and contents. Meanwhile the section defines the"law"of the numerus clauses principle and its relativization, denies the validity of property created by the administrative rules, regional regulations, case law and customs, and gives analysis of causes.The fifth part proposes the methods implementing the relativization of numerus clauses principle in our country. On the base of the four parts above, this section takes a deeper investigation into specific methods that implements the relativization of numerus clauses principle in our country, namely: vesting to judicial interpretation of numerus clauses the status of source of law,admitting the force of numerus clauses created by customs, allowing the administrative rules to state or modify the contents of numerus clauses with the special authorization by the National People's Congress and its Standing Committee, establishing a self-contained announcement system of numerus clauses, making up for deficiencies of numerus clauses principle, creating usufruct interests covering all the numerus clauses of"usufruct"quality, etc., and proposes modification and perfection of the legislations as radical solutions.