Property Rights Of Legal Doctrine And Its Contemporary Fate

Since the principle of legality of real right established, it has been one of the most important principles of jus rerum of the continental-law countries, which is regarded as the basis for construction of jus rerum system. However, the development of this principle is still in doubts for its inherent limitations, especially in the 20th century, it has come in for a great deal of criticism and been considered in crisis. It seems that breaking the closed statutory jus rerum and constructing an open real right system has been much popular in theory.In this paper, through the studying the history of principle of legality of real right based on its definition, one view is drawled that in order to establish a property right system corresponding to obligatory right system, the real right concept shall be abstract, the said principle is just established with the shaping up of the dualism of property right, so that the dual system of real right and property right makes up the theoretical basis of the said principle. This principle is not popular in the continental-law countries, but is the result of Pandecten system of civil law and only exists in the jus rerum in the countries with the German civil law tradition.Based on the above-mentioned study, the author gives a positive assessment on the institutional value of this principle, and considers, through analyzing the arguments doubting or negating this principle, that it shall be insisted on under the prerequisite of not changing Pandecten law tradition, provided that the rigidity it causes be solved by supplementing legislation.Finally, in the author's opinion, the principle of legality of real right, which is attached to the overall structure of civil legislation, is only a matter of option of legislative policies. Since the beginning of the last century, China has inherited the civil law traditions represented by German law, which shall be followed by jus rerum. Therefore, the principle of legality of real right shall be adopted in Chinese real right legislation, and new real rights appeared in social activties shall be positively absorbed in order to overcome the limitations of this principle.There are four parts in this paper except the preface and the conclusion. After a brief introduction of the significance for selecting such subject in the preface, the first part is titled...