On The Establishment Of The Claim In The Civil Code

This thesis with academic discussion and practice is for the purpose of giving some suggestions on the compiling Civil Code of China. In Germany Civil Code there has been the institution of Claims in Rem (dinglicher Anspruch). In the General Principal of Civil Law of the P.R.C., we use some ideas of the Right of Claim system of Germany Civil Code for reference. In the process of our compiling the Civil Code of China, whether establish this institution, whether establish the Right of Creditor, how choice the remedy of Real Right? Based on the elementary knowledge of Claims in Rem, this thesis elucidate the reason why in the Civil Code of China we don't establish Claims in Rem, the reason why we establish the Right of Creditor, and also gives the point that we should use Civil Liability to protect the Real Right and other absolute rights.Part One: Through the analysis on Claims in Rem of the conception, classification, characteristic and difference between the Sue ,the author try to let the reader have an clear understanding on Claims in Rem.Part Two: Based on the conception of Claims in Rem, the thesis mainly refers to the function of protecting Civil Rights, emphasizes on the important function that Claims in Rem does to the good legal thought and good legal idea. At the same time the thesis expands the significance that Claims in Rem sets up in the Civil Code of China.Part Three: Refers to the establishment of Claims in Rem in the Civil Code of China. The thesis inspects the history of Claims in Rem: Claims in Rem outsets in Rome Law, formed in Germany Civil Law. The thesis analyses that the nature of Claims in Rem is Rights of Relief and the advantageous of Claims in Rem, emphasizes that protecting the Real Rights should adopt the Civil Liability but not to set up Claims in Rem in the Civil Code.Part Four: Refers to the establishment of Obligatory Claim in Civil Code ofChina. The thesis refers to the conception Debts, the intension of Debts, ranged the scope of Debts and analyzes the reason why the relief of some absolute rights adopting Civil Liability but not Obligation Claim. The thesis also analyses that the nature of Debts is Claims of Rem. Debts include Obligatory Claim and Relief Obligatory Claim.Part Five: Refers to the establishment of the institution of Claims in Rem in Civil Code of China. Generally illuminate the reason about establishing new institution of Claims in Rem .Whereas Obligatory Claim is the foundation, so the Relief including Real Rights etc. should adopt the Civil Liability. And the new institution of Claims in Rem should exist in the Debts and Torts in Civil Code of China. So it is necessary to set up Debts and Torts in Civil Code of China. In this way, the institution of Claims in Rem set up in Civil Code of China completely.The author hopes this thesis could brings some good suggestions on the understanding of the Claims of Rem in Civil Code of China to the legal faculty.