Study On Juristic Acts Of Real Rights

Chinese scholars began to study juristic acts of real rights from the1980s andtriggered endless arguments. This paper argues that one of the reasons that cause thediscrepancies is that the scholars ignored the substantial law and other relative rules.The discussion on the juristic acts of real right will be analyzed in three levels:first, whether the concept of juristic acts of real right should be accepted i.e. whetheracts of real right does exist; second, whether the independence of real rights should beaccepted i.e. whether acts of real right should be separate to juristic acts of creditor’srights; and third, whether juristic acts of real right has the character of being abstract,in other words, the existing of juristic acts of real right is the precondition of itsindependence and being without cause, but the existence and independence of juristicacts of real right does not mean the character of its being abstract. The followdissertation will be divided into four chapters in order to explain those questions in alogical way.Chapter One: analysis of the existence of juristic acts of real right. Theexistence of juristic acts of real right is the logical starting point of its independenceand being abstract. If its existence is disaffirmed, there will be no reason to discussthe rest two. So this chapter begins with the discussion of the existence of juristic actsof real right. First of all, according to the legislation and theories in China, the focus point on the existence of acts of real right among different theories in China will befound and literal explanation will be made based on the relevant articles in PropertyLaw. The range given by Property Law can be figured out accordingly, on explanationof the existence of acts of real right. Apart from that, judicial practice in courts will bestudied. Some courts have already accepted the concept of juristic acts of real right.Then relevant rules in France and Japan will be analysed, and the argument andlegislation background on acts of real right will be explained. Lastly, a furtheranalysis will be followed based on the first two parts, and a conclusion that juristicacts of real right should be permitted to exist in our country will be made.Chapter Two: analysis about independence of juristic acts of real right. Basedon the confirmation of the existence of juristic acts of real right, the next question willbe whether put intention in the aspect of right in rem combined with obligatory rightor separated to it and has its own way of existence. This is the very point should bediscussed here. First of all, according to the legislation and theories in China, thefocus point on the independence of acts of real right among different theories in Chinawill be found and literal explanation will be made based on the relevant articles inProperty Law. The range given by Property Law can be figured out accordingly, onexplanation of the independence of acts of real right as well. At the aspect ofjurisprudence, both claims (firm or disaffirm) to the independence can be found. Incomparative law studies, relevant rules in Germany and Switzerland will be discussedand their argument and legislature background will be explained. Lastly, a furtheranalysis will be followed based on the first two parts. According to the study, theindependence of juristic acts of real right should be confirmed.Chapter Three: analysis about the character of being abstract of acts of realright. After the confirmation of the existence and independence of acts of real right,whether its character of being without cause is the question will be solved in thischapter. First of all, according to the legislation and theories in China, the focus pointon the character of being without cause of acts of real right among different theoriesin China will be found and relevant articles in Property Law, together withjurisprudence will be explained. Secondly, at comparative law aspect, rules together with their historical background and academic criticism in Germany will be analysed.In the meantime, this character of acts of real right is disconfirmed in Switzerland intheir regulation. Based on these analysis, and combined with the legislation andhistory on this area in our country, the system of public credibility and acquiring ingood faith have performed well in protecting treading safety and balancing the profitsof both parities. So it is not a necessity for our country to confirm the character ofbeing without cause of acts of real right.Chapter Four will be a summary of the former three analysis. Based on thelegislation frame, the history and the treading custom in our country, in either theoriesor legal explanation, the existence and independence of acts of real right should beconfirmed while their being without cause character should be disaffirmed.