Study On Legislative Attribution Of The Security Right

It has been thousands of years since the security right emerged. And it has been a controversial issue in civil law debating to define the nature of the security right and to arrange its attribution in the civil code. There has formed the three kinds of view of "real right","creditor’s right" and "intermediate right" in the definition level of the property of the security right. And there has developed the three representative types of legislation models of "French civil code ","German civil code" and "Italian civil code" in the legislation system level. In2006, the "French civil code" modified the security legislation. After the reform the security emerged in the "French civil code" as an independent volume, which has created a new French mode."Real right" is the mainstream view in the theory and legislation of our country. Most scholars claim that security right is real right, and that we should contain security right into property law as Germany does, which has been reflected in the " Property Law " in2007. However, the security right is not real right, which owns different right object from real right. This is the basic reason of their different properties. We can’t define the security right as real right just because of its relevance with properties. This can only causes disorder within the property law system itself. The security right is the righe of priority, and should be included into obligation law, thus forming a unified debt guarantee system out of the consideration that both its guarantee methods and people’s are in the form of debt guarantee.Besides the factors of the nature of security right and its unity with people’s guarantee function, that security right belongs to obligation law is also the inevitable result of the separative movement of property law. The first achievement of this separative movement is that the huge property law system in Roman law has lost its weight into the tangible property law system in "German civil code", which removes creditor’s rights and heirdom in the former. This reduced tangible property law still needs to lose its weight, security right should break away from the current property law system to solve the contradiction and chaos of the internal property law system, and meanwhile, to clear one obstacle for the intergration and the construction of the right system in the whole civil code.