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Study on the History of Res Incorporale

Author: YinChunHai
Tutor: XuGuoDong
School: Xiamen University
Course: Civil and Commercial Law
Keywords: incorporeal thing intangible property right of things
CLC: D913
Type: Master's thesis
Year: 2009
Downloads: 91
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Abstract

Incorporeal thing is denoted frequently as another name of intellectual property in the civil law system of modern times.As the common factors shared by that copyright,patent,trademark and such on,the concept of incorporeal thing is recognized as a system-shaping means under intellectual property.However,modern prospect of incorporeal thing,precisely speaking,the intangible property has long disguised its face in the classical times—namely,the functional characters of the concept ’incorporeal thing’.Consequently,there invariably exists the denoting contamination between "incorporeal thing" based upon experiments and incorporeal thing concerning the developments of some historical meanings.In effect,the development of the concept of incorporeal thing provides not only the fundamental view of intangible property in its modern contradiction,but also the inner clue of the developments of thoughts and institutions of civil law.The dissertation relies on the historical depiction of incorporeal thing,endeavors to give a semantic context of the modern incorporeal thing,and hence makes a further exploration on the necessity for it to survive.There are 4 parts with each its counterpart a typical period that form the main structure of the thesis.The 1^st part is on the history before the history of legal conception of incorporeal things.There already existed the parallel of the ideas corporeal and incorporeal in Grecian and Roman philosophy.It may not only demonstrate the influence made by those Grecian philosophers to Roman law in the times followed,but can also provide some linguistic clues at the very beginning of modern Intellectual Property,namely the intangible property in its usual denotation through the research of this part.The 2^nd part mainly concerns on res incorporale of the Roman law.Incorporeal things（res incorporale） became a legal conception from the times of Gaius. Followed the expression of Gaius,res incorporale had certain functions of shaping a civil law system throughout the history of Roman law.It made use of the ideas found out by Grecian philosophies that things can only exist in conception with a view given by the standpoint of atomism,subsequently constructed an independent legal system full of idiosyncrasy.This part relies on the classical expressions of the original texts given by Gaius and Justinianus,gives a general view of the development of res incorporate in the range of that Roman times,bases upon which appears the classical meanings of incorporeal things for the first time in a legal context.The 3^rd part depicts the fate of res incorporale in the middle ages and modern times.New analytic methods had been developed attributes to the efforts of medieval jurists,due to which did it expose the deficiencies both in logical contradictions and more importantly,its unsteadiness in the essence.The res incorporale in the Roman law with an atomism view was destroyed by medieval and modern jurists;the classical meaning of incorporeal thing was finally clasped on meeting the theories of Pandect School.This part goes through by 3 kinds of pragmatic approach respectively dealing with different emphasis concerning res incorporale.There also includes an addition of some sketches on res incorporale in the process of codification in modern times.The final part shows the modern characteristic of res incorporale from a historical-social means with some predictions of this institution in the future.It contains 2 sub-parts.First,traditional usage has been shrunk to a small extent due to the missing of most traditional functions of res incorporale in modern legal theory. In the meantime,emerging intangible assets that can seek protection under civil law these days fall in the category of res incorporale,which leads the conceptual confusion in modern times.In order to solve this problem,it is of great necessity to make clear whether there exists the Tightness of letting the conception survive from now on. Hence,the 2^nd sub-part of this chapter dues mainly on the inner cause of the developmental formula of res incorporale,bases upon which contributes my judgment on the how-to-be problem of res incorporale via the means of comparing both the positive and negative features brought in by the usage of this discourse.

Study on the History of Res Incorporale

Abstract

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