Research On The Scope Of Legal Instruments Causing The Change Of Real Right

Article 28 of Real Right Law of the People's Republic of China states the change of real right caused by legal instruments,but the legal provision is ambiguous,and it is not clear which legal instruments can cause the change of real right when they come into effect.Although article 7 of Interpretation I of the Supreme People's Court on Several Issues Concerning the Application of the Real Right Law of the People's Republic of China explains the "legal instruments" in this article,it still cannot completely solve this problem:I found through the analysis of the judgment documents,there are other types of legal instruments that are considered to have the effect of causing the change of real right changes,in addition to the several types of legal instruments explicitly listed in the judicial interpretation;there are different views on the scope of legal instruments causing the change of real right in academia,and no consensus has yet been reached.Solving the problem of the scope of legal instruments causing the change of real right is helpful for the correct understanding and application of article 28 of Real Right Law,and it's also helpful for improving the theory of the change of real right.The research methods used in this article include document data analysis method,judgment document analysis method,comparative analysis method,etc.The main contents are as follows:In the introduction part,the issue of the scope of legal instruments causing the change of real right is raised through the judgment document analysis.At the same time,the research status at home and abroad is summarized,and the space for further research in this article is tapped.The first part explains the necessity of rationally defining the scope of legal instruments causing the change of real right.Since the broad interpretation of the"legal instruments" in article 28 of Real Right Law has a negative impact on both private and public law orders,it's necessary to rationally define the scope of legal instruments and restrictively interpret "legal instruments" in article 28 of Real Right Law.The second part discusses the path to define the scope of legal instruments causing the change of real right,or the theoretical basis for legal instruments causing the change of real right.The change of real right caused by legal instruments excludes the parties' autonomy and there is no need to maintain transaction security.Therefore,the change of real right caused by legal instruments can be effective without registration or delivery.There are two reasons why legal instruments can directly cause the change of real right.The first is the formative power of judgment,and the second is the public power of the state contained in the legal instruments,which provides a relatively clear and specific path for the subsequent definition of the scope of legal instruments causing the change of real right.The third part is to research the scope of court judgments causing the change of real right.Whether the court's judgment has the effect of causing the change of real right depends on whether the judgment is formative.In my opinion,only the formative judgment is formative and can cause the change of real right.Neither declaratory judgments nor payment judgments can cause the change of real right.The formative judgments causing the change of real right include at least the following categories:judgments to divide common property,judgments to cancel the contract,judgments to cancel the debtor's damage to the creditor's rightsThe fourth part is to research the scope of other legal instruments causing the change of real right.Whether mediation decisions and other legal instruments have the effect of causing the change of real right depends on whether they have sufficiently strong public power qualities.In my opinion,mediation decisions cannot cause the change of real right.Individual execution of rulings can cause the change of real right,and a few arbitration legal instruments can cause the change of real right.The innovation of this article lies in the use of the research method of analysis of judgment documents.I have made full use of the judgment documents resources disclosed by the Chinese referee document network,searching and analyzing the related referee documents combining the research purpose and the need.In the introduction part,it is understood that the courts generally consider which legal instruments belong to the "legal instruments" in article 28 of Real Right Law in the judicial practice through analysis of the judgment documents.In the third part,when researching on the effectiveness of the change of real right of the judgment that cancels the decision damaging the legitimate rights and interests of collective members or owners,the same is done by analyzing the judgment documents to know which legal rights of collective members or owners are usually involved in the decisions made by collective economic organizations.The difficulty of this article lies in the second part.Previous researches have proposed several points of view on the theoretical basis or legitimacy basis of the change of real right caused by legal instruments.From my point of view,these views have some truth,but they have not hit the lifeline.The theoretical basis for the change of real right caused by legal instruments explains why certain legal instruments can directly effect the change of real right without registration or delivery.I would like to subdivides it into two levels of problems and explains them separately.The solution of the latter level provides a concrete path for defining the scope of legal instruments causing the change of real right.The focus of this article is on the third and fourth parts,that is,which legal instruments belong to the "legal instruments" of article 28 of Real Right Law and can directly causing the change of real right when the legal instrument comes into effect,which is the core content of this article.In particular,scholars have divergent views in previous researches on the specific types of judgments causing the change of real right in the third part.