On The Rationality Of The Individualism Of Ownership

The trend of modern civil law ownership is an important issue concerning the basic theory of private law, it is correlated with the existence of private property institution that the basic attribute of ownership is individualism or social solidarity relation. The purpose of this dissertation is to prove the rationality of individualismownership through the pectination of civil law basic theory-liberalism thoughtsand that due to contradicting to the private law tradition ,the mainstream argumentabout ownership attribute-"the socialization of ownership" can not be taken as apart of civil law basic theory.The conception of ownership is the realization of the individual exclusive dominance might ,the essence of private law relation is separate right rather than setting restrictions on ground of social solidarity relation. The essential attribute of private property institution in common law system and civil law system can be described as a kind of individualism confined by Hayek : defining the common exclusive autonomy space of ordinary individual, no interference to the details of using things, just setting the common property right rules as the rights distribution the confining of liberty and liability the damage and compensation, providing the liability extent which can be expect. Civil law had never absolutizated the single ownership, but always develops the institutions to harmonize the interests between rights subjects which are the modern development approach of ownership.According to the transition of epoch philosophy spirits and economics thoughts, the integrated trend of "socialization" appeared in the modern civil law. The "socialization of ownership" argument mainly rooted from the social solidarity relation of sociology and socialism economics and law outlines is part of the modernity problem of civil law, whose essence is desiring renouncing the reality of subjective right conception ,destroying the separate property space, uniformlyarranging the use of materials in name of "social aim' "social interest". The argument is the deviation from private law tradition and the deny of individual ownership rationality. In order to refute the trend of "socialization of ownership" and retain the existence of private property, it is necessary to interpret the rationality of private law tradition.Civil law represents the autonomy life mode which can not be uniformly planned by governance will, the historical base of private property is the requirement of property extent which can be expected by substantial equal intercourse inside the civil society. Liberalism is the theory base on which civil can disprove the "socialization" thoughts: latter-day natural right theory deduce the necessity of private property to the human society from the supposition of "natural state";institution economics' property right theory verifies the "internalization" encouragement utility of private property which played a critical role in the rise of western world;the "evolution liberalism" believes the "negative liberty" "economical liberty" ownership represents is the super value;the conception of "civil society" provides a civilization root prior to political state, private property provides the confining of liability extent concerning "mine'\ "yours" which can be anticipated to the autonomy order whose root impulse are the liberal trade and equal intercourseThe conclusion is: the consolidated "liberalism" tradition ensures the ownership attribute cannot be shifted to "socialization", as the basic rule of civil society individual ownership has the eternal vitality. It is obligatory to retain the utility of ownership in keeping the autonomy space, rather than arranging the use of materials specifically and uniformly on grounds of "social economic aim". The "socialization of ownership" is contradicted to the "individualism", "liberalism" tradition of civil law, can not enter the basic theory of civil law. The modern development approach of ownership is to continually improve the rights harmonization institutions, the china legislation of "sachenrecht" should keep the individualism stand.