On The Object Of Real Rights

Experienced 15 years of legislative process,the real right law of the people's republic of china officially implemented on October 1, 2007. It fully recognized and established law of real right and property system in china. And it is the milestone in the process of the socialist legal process with Chinese characteristics.The right law received widespread attention in the community, since it was formulated and issued. On the one hand, the right law comply the basic spirit and idea of the Germany classic property theory, on the other hand, it has some innovations and developments in the specific form and content, according to political, economic, and cultural characteristics of our own country, such as its paragraph two of article, it is about the object of real right. The author research and analyze the paragraph two of article deeply, and aim for making a series of valuable interpretation.In the first part of this article, the author proposes clearly those things as the object property in the real right law of the people's republic of china only is"res corporals"still. And explain it on three dimensions. First of all, in my opinion, theory of the"res corporals"is the logical basis of the real rights theory. In history, the merit of creating the real rights theory and corresponding legislative system belongs to German."The real rights"is the product of a high degree of abstract thinking of germen. This abstract thinking must be on condition another special way of thinking that is"dividing". But only based on the res corporals, we can divide the real rights and the right of credit, and divide the real rights and intellectual property rights. Therefore, the"res corporals"is the logical starting point of real rights theory. Secondly, the author analyzes the content of the res corporals. And make my own viewpoint about res corporals. The appearance of natural forces and space is a challenge to the res corporals. The author deem that the nature of res corporals lie in its specificity, not its external body. Therefore, natural forces and space belong to the res corporals. In the end, the author analyze why res not be limited to res corporals in the real right law of the people's republic of china. In the second part of this article, the author first analyzes the legislation about movable property and real property on Roman law, French law and German law. This classification is called movable property and real property on Roman law and French law. But on German law it is called movable property and land. And on Roman law and French law this classification is based on property, but on German law it is based on res corporals. Later, the author analyzes the achievements and shortages of legislation about movable property and real property in the real right law of the people's republic of china. And deem that it is commendable, that in form the classification is called movable property and real property, but in content it based on res corporals. At the same time the author deem that legislators should clear the concept of movable property and real property further.In the third part of this article, the author explores the regulation about rights in the paragraph two of article. First of all, distinguish rights and res strictly. Compared with res corporals, rights have not the natural quality. And compared with res incorporales, essential attribute of rights lie in legal nature, but essential attribute of res incorporales lay in sociality. So to say, rights, res corporales and res incorporales are different in essential attribute. Secondly, the regulation about rights in the paragraph two of article show the Chinese characteristics of real right law, either in form or in content, compared with German property law. The real right law of the people's republic of china regulates the rights in the part of general principles. And the contents about rights are different from German real rights. Thirdly,"be prescribed by law"in the paragraph two of article is the limit to rights. That is to say, whether a right can became the object of real rights, lie in there is or not clear legal provisions. At the end, the regulation about rights on the real right law of the people's republic of china is open.In the last part of this article, the author deem that, since we have choose the German mode in the field of property law and formulated the real right law of the people's republic of china, then we should persist the basic principles and essential ideas of traditional property rights theory, as well as make innovations and developments on specific form and content. From this point of view, the paragraph two of article of the real right law of the people's republic of china is commendable.Wish the real right law of the people's republic of china will go far on the upholding and developing road.