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Right Statutory Research

Author: GongShouBing
Tutor: SunPeng
School: Southwest University of Political Science
Course: Civil and Commercial Law
Keywords: The numerus clausus principle Basis for explanation Private governance Property publication Quasi- numerus clausus principle
CLC: D923.2
Type: Master's thesis
Year: 2007
Downloads: 787
Quote: 3
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The stipulation that "The classification and content of right to property shallbe available only in accordance with law." in Article 5 of Property Law adopted inMarch 2007 means the change of theoretical Principle of the numerus clausus intoreal statute which takes place in the circumstance of taking this principle as "one ofthe most seriously criticized principles since the 20th century". Underthis circumstance, the compromised numerus clausus principle has beenthe mainstream, while theories against the numerus clausus principlestill comparatively prevails .In the judicial practice, the numerus clausus principlealso finds itself in a embarrassed situation: this seemingly compulsory principleoften stands evaded or even ignored by the courts. Though it has its particularhistorical value and positive policy consideration in the specific social environment,this principle has been inevitably challenged, with advance of time and thefundamental social economic changes, by the coming of some new socialeconomic systems and the correspondent theories and by the development of theoriginal system. Thus, it is of great significance to re-evaluate the mumerus claususprinciple in a new changed social economic situation. This paper has five parts inaddition to the instruction.The first part introduces the deep connotation of the numerusclausus principle (including its denotation, its interpretation and the legalsequences of violation of the principle), its origin and the principle inAnglo-American legal system.The second part focuses on the analysis of the three bases on which thenumerus cluasus principle builds, i.e. readjustment of the real right in the past,requirement of curbing the feudalist real right and maintaining the real right systemof separating property right from creditor’s right and the theory of economicjurisprudence. Through the analysis, the author advocates that none of theinterpretation can justify the adoption of this principle. The historical and politicalinterpretation (actually the interpretation of ownership fight) is obviously out offashion. The logical interpretation of function of maintaining the existing system ischallenged, or even ignored, by the property publication system, legislation and judicial practice. The interpretation from the angle of economic jurisprudence failsto illustrate exhaustively the principle.The third part observes the regulatory nature of the numerus clausus principle,the principle of private governance. Under this principle and the relationshipbetween the numerus dausus principle and the privity of contract. The authorargues for the "Mandatory nature" of the property law within the framework ofprivate law. Under this principle, autonomy of the will still prevails. But thejustification of the limitation of the numerus clausus principle on autonomy of thewill doesn’t conform to the principle of proportion nowadays when the publicsystem has attached increasing importance. The privity of contract and thenumerus clausus principle don’t, in a sense, conflict with each other. In most cases,the issue of the numerus clausus can be interpreted as the extemal force of acontract.The fourth part elaborates the possibility of deconstruction or substitution ofthe numerus clausus principle with other systems and functional regulatory bodyin the perspectives of the relationship among the numerus clausus principle, thepublic order, boni mores principle, one right for one piece of property principle(Spezialit(?)tsprinzip), the property publication principle and the trustsystem respectively, thus serves as the base for future research on this principle.The fifth part explores the practical operation and prospect of the numemsclausus principle. Generally speaking, this principle has never been put intopractical operation strictly and been always in an embarrass situation of beingevaded or even ignored in practice. The author predicts the future of this principleand advocates that: first, the principle should be distinguished applied with somerestriction; secondly, this principle continue with some technical adjustment on its"primary property right" in legislation; and last, in judicial practice, such judicialtechniques as balance, imitation and analogy be employed to reduce the negativeeffects of this principle on the one hand and the application of this principle beevaded through transfer of it into issue of "the effect of contract upon the thirdparty".

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