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"Deconstruction and his real right system is the form -- a perspective on the interpretation of the theory of separation of powers"

Author: LiGuoQiang From: www.yourpaper.net Posted: 2010-06-24 13:58:20 Read:
Keywords: "power separation theory" relative ownership he property interpretation
Abstract: although "power separation theory" and have many defects due to the limitations of the times, but because of its intrinsic rules and can transcend system."Separation of powers" of the internal rules of the performance in the right object contains a set of rights interests, is the so-called "power" to cover interest control properties.Since the modern real right legislation to adhere to a strict numerus Clausus, not for property reservation new growth space.However, with the development of economy, whether legislators are willing to, the new property are constantly generated, therefore, should be on applicable scope to expand his real right system to explain, so that his real right system can accommodate atypical property.
Modern property law system to absolute ownership as basic point to construct, with existing state ownership and exercise the process specification of the core, focusing on the protection of the static property ownership, and on the basis of "power separation theory" to build his real right system, [1] in the effect is shown as having superior characteristics and utilization of ownership right weakening.This system constructed in accordance with the era of liberal capitalism free competition in a market economy, free trade, and make people get rid of the feudalism identity inhibitions and become free of the civil subject, which led to the prosperity of modern capitalist economy to a certain extent.However, in the economic development to the modern, property law system has undergone tremendous changes, the object of real right and other rights types are beyond the framework of traditional property law, and his real importance on transactions in the market is increasing, [2] and the relative, the property law system is still to stay in place, all rights to special provisions to deal with traditional property law system has been unable to explain, this obviously can not meet the needs of real right law system and trade development.With the large-scale development of the market economy, property right theory and legislation of traditional control the optimal allocation of social resources and natural resources and the full, reasonable, efficient use, in the actual operation of the economy increasingly highlight its fatal flaw.While recognizing the problems of ownership concept in the traditional real law, internal changes follow logic of ownership concept, the author puts forward to relative ownership concept instead of the traditional concept of absolute ownership point of view.The conception of relative ownership since it contains the revision of traditional ownership concept, it must be able to interpret the property law system, otherwise it is not up to straighten out the logic, the purpose of solving the problem.According to the relative ownership concept to explain the property law system, is to break the "power separation theory" as the theoretical basis, taking ownership and usufruct inner logic, the basic architecture of the new perspective to elucidate the relationship between ownership and rights in rem, [3] so as to realize the traditional real right function promotion and makes the right into the the property law system.
a, "separation of powers" Deconstruction "[4]
(a) "power separation theory" structure and review the
civil law countries, the traditional real right system is a "level" structure, which is different from the Anglo-American system of real right as the "equality" structure; ownership of the full protection and not be separated after their protection is the property law system design efficiency.According to [5] dominated by the modern concept of absolute ownership in the continental law system countries, civil law theory, ownership is the domination of specific objects of rights.This comprehensive control performance for the possession, use, income, punishment power, civil law civil law code as the basis of all ownership rights provisions.In contrast, the ground outside right, easement, mortgage and ownership of property is in a certain range, the specific object of rights.The owner for the control is not limited to the abstract existence, and usually some concrete forms, different function of ownership have different forms of ownership, is the organic component of content ownership.
"power separation theory" in the relationship between right and power as the starting point: first, the rights will be decomposed into various empowerment, ownership is decomposed into possession, use, disposal and the proceeds of the rights, one or several ownership can be separated set a right in rem, suggesting that "power separation theory" is the relationship between power and rights as a prerequisite for understanding the relationship between part and whole; secondly, power and right serial conversion, the separation of ownership and converted into his property, his real right and one or more of a possession, use, income power or punishment.Of note, the right of ownership is all blend into one harmonious whole., rather than simply separate, ownership of the "separation of power" is not a simple ownership transfer of some power."The sum of ownership is not on the object of power, but can use a muddy content in the statute of limitation of rights.Set the right on the ground or mortgage right based on the ownership, separation of powers is not a form of ownership of content, but the assignment of a muddy content specific.When the ownership and other property belonging to the same person, because of confusion that led to the eradication of."[6] "power separation theory" in line with modern law concept of absolute ownership, and free capitalist economic concept of fit, emphasizing the owner that market rational reason."Separation of powers" intuitively reflect real life scenes like this: all of the property to others and oneself lose the chance, the property back to all the people, all the people returned to their own use of the rights of all people, cannot use their property that a period of time, it is to use right existing.The scene is on twentieth Century before the free capitalist market transactions to describe, but because of the characteristics of the times and show some limitations of the times, further development in the market after the transaction, the relationship is becoming more and more complicated, the absolute ownership as a "power separation" basic does not exist, "power separation theory" explanation capability naturally stretched.
if the object of property right economics analytical description of the resource, then you will find that each person's rationality does not necessarily can ultimately lead to social rationality, economic relations in the perplexing, effective for the optimum allocation of resources and set up many obstacles with absolute ownership.Firstly, according to the concept of absolute ownership, as long as all the people do not harm the social or the interests of others, can the arbitrary exercise of power, and exclude the interference from the state or others.In order to short-term economic interests of individuals, all people are generally reluctant to make its real property transfer and separation of powers, which will cause the property long idle, and even obvious waste, damage, so that the optimal allocation of resources and in the circulation to achieve value-added possibilities by all accounts for constraints and facts to control.Secondly, in order to maximize the effectiveness of resources, should be the ability to use resources to full possession, utilization of resources, and multiple object of right above shall be conducive to the accelerated flow, simplify transaction procedures.[7] but, in accordance with the modern private law theory of property, he set in accordance with the law, ownership of property, whether he right person power how widely, because of his property eventually does not enjoy the right of possession, so he the right person is restricted by the ownership of the will of the people.So, the value of his property owned property can not be fully reflected, of course, also do not talk to go up to maximize social benefits.And, in principle as the object of ownership and real right above him to the same subject, his real right out, this is not conducive to saving transaction costs, is not conducive to the effective use of.For example, in the mortgage of the occasion, the transfer of the mortgaged property ownership and mortgage of confusion leads to the same person, the mortgage shall in principle be eliminated.However, if the law provides mortgage not eliminated, can produce all the land after exclusion order guarantor by auction of land income price and preferred money legal consequences for a certain amount of, then take the right of guarantee form is more reasonable.In addition, if the mortgage is not eliminated, can all land registration does not cancel the mortgage will be the land for guaranty for the creditor's right and as the future gets motionless credit basis property, so it is also a shortcut of land all people to achieve their economic objectives.For the realization of all economic purpose, should make a right of ownership in legal form can exist independently and give it different from ownership, which should take all mortgage form.The owner hypothec is a product of modern credit economy, has been recognized by the Germany civil law, the system has to some extent represents absolute ownership under the concept of "separation of powers" is difficult to meet the actual demand.Moreover, according to the concept of absolute ownership, servient tenement easement and the easement shall be different people all, because ownership is
The most extensive rights, the owner can control any of all his things, do not make an unnecessary move to another of his property.However, many countries civil code recognized all the easement.[8] this is because never dynamic order production, reserve power all play greatly to ensure that the property owner's interests under the premise of not economic utility property."In the principles of their land can not be established easement" only that the owner of all the complicated situations, and ignore the matter as he used.For example, the ownership of the land in the transfer of construction land use right before put things right once and for all to the sale of land to set an easement burden, so as to determine the height of the building, architectural style and other matters in right way, to ensure that its other real estate interests.[9] anyway, "separation of powers" is based on a theory of specific era explanation model, it can well explain the specific times of real right system, but can not adapt to the development of the times to update the property system needs.
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