On the content of usufructuary right

Ownership includes possession, use, income and disposal, while usufructuary right, as a kind of property right based on ownership, also includes these four contents. This paper holds that the possession of usufructuary right can usually be embodied as direct possession, and in special circumstances it can also be embodied as indirect possession; The right to use usufructuary right can include three forms: life usufruct, business usufruct and public welfare usufruct; Although the income right of usufructuary right is an important power, it is not the right force of various usufructuary rights; The disposition right of usufructuary right is embodied in legal disposition, not factual disposition.

Key words: usufructuary right, possession right, use right, income right and disposition right.

The content of usufructuary right is the power of usufructuary right. Theoretically, there are different views on the content of usufructuary right, including two rights theory, three rights theory and four rights theory. In my opinion, the content of usufructuary right will be different due to different types. But as far as usufructuary right is concerned, its content should include four powers: possession, use, income and punishment. Of course, this does not mean that every specific usufructuary right includes these four powers, and the power of specific usufructuary right can only depend on the characteristics of usufructuary right.

I. Possession of usufructuary right

Possession is the actual management and control of things. Under normal circumstances, the usufructuary right can only be exercised and realized when the subject matter of the usufructuary right is transferred to the usufructuary right holder. For example, users of construction land cannot build buildings on the land without transferring the ownership of the land; Without the transfer of agricultural land ownership, the land contractual management right holder cannot cultivate the land. Then, can the possession of usufructuary right be limited to direct possession or include indirect possession? Scholars have different opinions on this. Some scholars believe that the possession of usufructuary right should be limited to direct possession, and indirect possession cannot use the income because it does not directly possess the entity; [1] Some scholars believe that in usufructuary rights, the subject matter must be transferred to the usufructuary right holder before it can be possessed, including direct possession and indirect possession. [2] I think that the realization of usufructuary right is usually based on the premise of direct possession of the subject matter, but it is not necessary to directly occupy the subject matter during the existence of usufructuary right. In practice, the usufructuary right holder can transfer the usufructuary right to others for possession in order to obtain greater benefits or other reasons. Therefore, the right of possession in usufructuary right can usually be expressed as direct possession. But under special circumstances, the possession of usufructuary right can also be expressed as indirect possession. For example, in the pawn right, the pawnbroker rents the house to others without transferring the direct possession of the house, and the pawnbroker only obtains the indirect possession of the pawnbroker's house. Because renting pawns is a right of pawnbrokers, and it is also a way to use income. For another example, the user of construction land rents the right to use construction land, and the land occupied by the usufructuary right holder also belongs to indirect possession.

Possession can be the basic power of usufructuary right and the basis of the power of use and income. The superficies, permanent tenancy rights, usufructuary rights, use rights and residence rights in foreign laws, and the land contractual management rights, construction land use rights and homestead use rights in China laws all have possession rights, so there is no doubt. However, scholars have different views on whether the easement has the effect of possession. Some scholars believe that no matter whether it is positive or negative easement, continuous or non-continuous easement, apparent easement or non-apparent easement, it is not based on the premise of possession, and easement does not include the power of possession; [3] Some scholars believe that easement includes possession. [4] In my opinion, whether different types of easements have the right to occupy is different. Some easements have no possession, such as overlooking easements and lighting easements, so they have no possession; Some easements have the right of possession, such as water diversion easement, drainage easement and stripping easement. Therefore, it is inappropriate to deny the possessiveness of easement. Then, can the possession of easement be exclusive? In this regard, there are also differences of understanding among scholars. Some scholars believe that the possession of easement can be exclusive. Therefore, the easement holder can not only use the same land with the serviceman, but also use the same land with other easements or other usufructuary holders. [5] I think whether the possession of easement can be exclusive cannot be generalized. In general, the possession of easements can be exclusive, but this does not rule out that the possession of individual easements can be exclusive under certain circumstances. For example, according to the characteristics of individual easements, if the easement cannot be exercised without exclusiveness, then the possession of the easement is exclusive. At the same time, the parties agree that the possession of the easement holder is exclusive, and the possession can be exclusive.

Since the subject matter of usufructuary right usually needs the direct possession of the usufructuary right holder, is it allowed to transfer the possession of the subject matter besides the actual delivery such as simple delivery, possession change and instruction delivery? The so-called simple delivery refers to the delivery method of replacing the real transfer of property right possession by the way that both parties agree to establish property right. It can be seen that simple delivery is a simplified realistic delivery, so simple delivery is also applicable to the possession and transfer of the subject matter of usufructuary right. For example, one party lends its house to another party for use, and then the two parties negotiate to set the right of residence or mortgage on the house. After the two parties reach an agreement on the right of residence or mortgage, the house is deemed to be delivered for possession. The so-called possession change means that the creator of real right still directly occupies the subject matter, while the obligee indirectly occupies the subject matter. For example, A gives a house to B and agrees to let A rent it for another 30 days. It can be seen that the direct possession of the subject matter has not been transferred, but the usufructuary right holder has only obtained the indirect possession of the subject matter. This way of delivering the subject matter by changing possession should also be allowed. Of course, it is usually not allowed to change the delivery method of possession for the right to use construction land, the right to contracted management of land and the right to use homestead. The so-called instructed delivery means that when the property is occupied by a third party, the property owner assigns the transferee's right of return to the third party to replace the actual delivery. For example, A lends the house to B, and then gives C the right of residence or mortgage ... So, can A transfer the right to return the house to B to C instead of delivering the house? In this regard, some scholars believe that after the establishment of usufructuary right, if the founder transfers the right of return to the third party to the usufructuary right holder, that is, when transferring indirect possession, the usufructuary right holder must also exercise the right of return to obtain direct possession of the object, and it will control the subject matter in entity. [6] Although this view is self-contradictory, it actually recognizes the effectiveness of instruction transmission. The author thinks that instruction delivery can also be applied to the transfer and possession of the subject matter of usufructuary right. However, if the usufructuary right holder cannot exercise the right of return or the exercise of the right of return is invalid due to the usufructuary right holder, the usufructuary right holder shall be liable for the losses suffered by the usufructuary right holder. Of course, the transfer of possession of the subject matter of usufructuary right by means of possession change or instruction delivery cannot violate the provisions of law or the purpose of usufructuary right.

Second, the use of usufructuary right and usufructuary right

Usufructural right is a usufructuary right set for the purpose of using income. Therefore, it can be said that use and income are the core functions of usufructuary right.

Use refers to the use of things according to their nature and purpose to meet the needs of production and life. The right to use usufructuary right can be the concrete use of things, which is essentially to realize the use value of things, so the right to use can be a kind of de facto power. Usufructuary right is the power that directly acts on the subject matter of usufructuary right, and it is the power of various usufructuary rights. Therefore, in German civil law, the legal direct meaning of usufructuary right is the right to use, that is, the right to use other people for the purpose of use. [7] There are three main forms of usufructuary rights: one is life use, that is, usufructuary rights are used to meet their own needs. Daily use is generally a simple use of the subject matter, without the right to income. For example, the right holder's use of the homestead and the right holder's use of the house belong to life use. The second is business use, that is, using usufructuary rights to make profits. Because commercial use is for profit, it is often accompanied by the power of income and sometimes the power of punishment. For example, the right of land contractual management uses the land for the purpose of obtaining some agricultural products; Users of construction land develop buildings on the land for the purpose of selling houses for profit. Therefore, these uses are commercial. Of course, when the owner of construction land sells the house he built, if the owner of the house uses the construction land because he lives in the house, it belongs to life use. The third is public use, that is, the usufructuary right holder uses the usufructuary right for public purposes. For example, the land used by construction land owners belongs to education, science and technology, culture, health, sports and other purposes, and such uses are public welfare purposes.

According to Article 100 of the German Civil Code: "Income refers to the fruits of things or rights, as well as the benefits obtained by using things or rights." Therefore, income refers to the economic benefits generated by collecting the subject matter. The scope of economic interests here is quite extensive, including not only natural fruits and legal fruits, but also various interests generated in actual production and business activities. There are two different views on the position of income right in usufructuary right. One view is that usufructuary right should be both useful and profitable; [8] Another view is that the usufructuary right does not have to have both use and income. [9] I think that through the concrete analysis of various usufructuary rights, we can find that usufructuary rights have the following three forms: first, there are only usufructuary rights without usufructuary rights, such as the right to use homestead, easement and residence rights; Second, there is only the right to income, not the right to use. For example, after subcontracting, rural land contractors have only the right to income and no right to use; Third, there are both the right to use and the right to income, which is the most common situation, such as the right to use construction land and the right to contract land management. It can be seen that the usufructuary right is not the same right as all kinds of usufructuary rights. As for which kind of usufructuary right has the right to income, it should be decided according to the specific situation.

Third, the right to dispose of usufructuary right.

In the usufructuary right, does the usufructuary right holder not only have the right of possession, use and income, but also include the right of disposition? There are different theories about this. One view is that the content of usufructuary right does not include the right to dispose, but its content is the possession, use and income of the subject matter, excluding legal punishment. Specifically, after the establishment of usufructuary right, the property owner did not transfer the right to dispose of his ownership to the usufructuary right holder. Although the usufructuary right holder has no right to dispose of the subject matter, he can transfer the land use right and pawning right, or set up a mortgage to dispose of the usufructuary right itself. ⑩ Another view is that, as far as legal punishment is concerned, the usufructuary right holder has no right to dispose of the usufructuary right, but the obligee has the right to dispose of it, that is, the right to transfer rights and set burdens, such as transfer and mortgage. As far as the right of factual disposition is concerned, because the right of factual disposition is often the condition of using things, in many cases, the right of use and income can only be realized by combining with the right of factual disposition. For example, in order to build buildings and grow food on the land, it is necessary to lay the foundation, turn over the soil, and repair the ridges. This is a de facto punishment for land, and it is impossible to prohibit the use of land for such punishment. Therefore, usufructuary right should include the content of actually disposing of things. [? There is also a view that when discussing the right to dispose of usufructuary right, it is usually discussed whether the obligee can legally or actually dispose of the subject matter of usufructuary right. From this point of view, as far as legal punishment is concerned, the usufructuary right holder cannot dispose of the subject matter according to law; As far as the actual punishment is concerned, for the purpose of use and income, the law generally allows the usufructuary right holder to improve or preserve the subject matter, but it is not allowed to significantly change or damage its subject matter. Of course, this view does not deny the usufructuary right holder's right to dispose of the usufructuary right itself, that is, the right holder can dispose of the right on his own in principle, unless there are special provisions in the law or the nature of the right requires. [? It can be seen that this view is based on the disposition of usufructuary right to discuss the right of disposition.

From the above different points of view, the reason for their differences lies in their different understanding of punishment. Therefore, we must first clarify the meaning and object of punishment. Professor Larenz, a famous German scholar, pointed out: "Punishment refers to a legal act that directly acts on an existing right, such as changing, transferring a right, setting a burden on a right, and canceling a right. The object of punishment is always a right or a legal relationship. Disciplinary actions of the owner to dispose of his ownership, such as the transfer of movable property ownership and the establishment of restrictive property rights (such as usufructuary rights, mortgages or pledges) for third parties. " [? ] The object of punishment (subject or object) involves the object of rights. Professor Larenz analyzed this problem from three levels. The first-level object of rights, that is, the first-level object of rights, is the object that dominates or uses rights and belongs to the narrow sense of rights. The right objects in this order are tangible objects and intangible objects, and the right of the third party to control or use them can be effectively established on them. Therefore, what someone owns is the first-order object of rights. The second-level object of rights, that is, the second-ranked object of rights, is the subject of rights that can be punished through legal acts. The object of rights in this order is the relationship between rights and law. When using the word "object" (subject matter) in German civil law, it is always combined with a legal punishment act or a right to punish, and the second is the object of right, that is, the meaning of punishing the object. Therefore, the ownership existing in something, as the object of punishment (the object that can be punished), is the second-order right object. In this sense, in terms of ownership, the so-called punishment should be the punishment of ownership, not the punishment of ownership. The third-level right object, that is, the third-level right object, refers to the right of a certain property or special property that can be disposed of as a whole. Therefore, the property itself is not the object of unified punishment. [? From Professor Larenz's discussion on the three levels of the object of rights, we can clearly find that the object of punishment can only be rights or legal relations, and the object of rights as the first priority cannot be used as the object of punishment. Of course, the punishment referred to by Professor Larenz is only from the perspective of legal punishment. As far as de facto punishment is concerned, the power of punishment should point to the object itself.

In China's civil law, it is generally believed that punishment is the core power of ownership in theory, so it is only explained when discussing the power of ownership. In my opinion, disposition, as a form of domination, is not unique to ownership, and usufructuary right and security right should also have the right of disposition, but the forms of expression are different. Generally speaking, punishment includes not only de facto punishment, but also legal punishment. In fact, punishment refers to the consumption of things, that is, changing the physical form of things through factual behavior to meet people's needs; Legal punishment refers to the disposal of the rights of things, that is, to change the state of rights of things through legal acts. By punishment, Professor Larenz means legal punishment. There are narrow and broad punishments in law. Legal punishment in a narrow sense refers to the punishment of the rights of the subject matter (such as ownership, usufructuary right and security right); The broad legal punishment includes not only the narrow legal department, but also the burden on the subject matter, such as usufructuary right and security right on the subject matter.

Based on the above analysis, I think the object of statutory punishment should be rights, but the object of actual punishment is the thing itself. On this premise, we can analyze the disposal right of usufructuary right in detail.

As far as statutory punishment is concerned, as mentioned above, it includes two situations: one is the right punishment; The second is to set the burden of rights. As far as the disposition of rights is concerned, the usufructuary right holder naturally cannot enjoy the right to dispose of the usufructuary right ownership, otherwise it will constitute no right to dispose. However, the usufructuary right holder should have the right to dispose of the usufructuary right, that is, the right to transfer the usufructuary right to others. As usufructuary right is a non-exclusive property right, the usufructuary right holder can realize the purpose of setting rights by disposing of usufructuary right. "The lack of disposition right is contrary to the dominant attribute of usufructuary right, which will affect the efficiency of usufructuary right." [? Therefore, the law should design specific norms to adjust the transfer of usufructuary right. Of course, the law can also restrict the transfer of usufructuary right for some special reasons. For example, the right of residence is a non-transferable usufructuary right, and the right to use the homestead is also strictly restricted when it is transferred. As far as the burden of right creation is concerned, the usufructuary right holder has the right to set mortgage, lease and other rights with usufructuary right as the object. For example, the right to use state-owned land stipulated by the current laws in China can be mortgaged or leased. Then, does the usufructuary right holder have the right to set a burden on the usufructuary right? In this regard, some scholars believe that the usufructuary right holder can not set the superficies, easements and mortgages on the subject matter, but can set the secondary usufructuary right on the usufructuary right he enjoys, which takes the existing usufructuary right as the object. [? In my opinion, because usufructuary right holders only enjoy limited property rights and have no ownership, usufructuary right holders generally cannot set a burden on usufructuary rights, such as setting rights such as superficies, mortgages and lease rights on usufructuary rights. But in some special circumstances, the usufructuary right holder can also set a burden for the usufructuary right holder. For example, the usufructuary right holder can set easements for others on the usufructuary right, and the pawnshop can set pawning rights on the pawnshop, which is to turn the pawnshop into a pawnbroker. It should be pointed out that in these cases, the object of usufructuary right set by the usufructuary right holder is not the usufructuary right enjoyed by the original usufructuary right holder, and its object is the same as that of the original usufructuary right, both of which are original real estate.

As far as the actual punishment is concerned, because it is a substantial deformation, transformation or destruction of the subject matter, under normal circumstances, this right of punishment must belong to the owner, unless otherwise stipulated by law. As mentioned above, some scholars believe that the usufructuary right holder also enjoys the de facto right to dispose of usufructuary right. I hold a different view on this. Although usufructuary right holders often need to deform and transform usufructuary right, such as laying foundation for building and plowing crops. This is actually a prerequisite for the usufructuary right holder to realize his usufructuary right, a form of usufructuary right utilization, and belongs to the improvement behavior of usufructuary right. The perfection of usufructuary right is completely different from the actual punishment of usufructuary right. Therefore, Article 1037 of the German Civil Code stipulates: "The usufructuary right holder has no right to modify or significantly change the property." The second paragraph stipulates: "Within the scope of not significantly changing the economic use of the land, the land usufructuary may set up new equipment for mining rocks, gravel, sand, clay, pottery, marl, peat or other soil components." The factual disposition of usufructuary right stipulated by the former is prohibited by law; The latter stipulates the perfection of usufructuary right, which is allowed by law. [? ]

Precautions:

[1] Wen Shiyang, Liao: General Theory of Property Law, People's Court Press, 2005, p. 394.

[2] Qu: "Research on usufructuary right system", China Founder Publishing House, 2005, p. 7.

[3] Liu Kaixiang: "On the claim of real right based on other real rights", Law Forum, No.2, 2003, p.33.

[4] Xie Zaiquan: "On Property Rights in Civil Law (Middle)" (revised third edition), Taiwan Province Wen Tai Printing Co., Ltd., 2004, p. 226; Chen Huabin: Principles of Property Law, National School of Administration Press, 1998, p. 553.

[5] Wen Shiyang and Liao: General Theory of Property Law, People's Court Press, 2005, p. 47 1 page; Chen Huabin: Principles of Property Law, National School of Administration Press, 1998, p. 553.

[6] Qian Xing: "Research on the usufructuary right system in China", Dr. Peking University's thesis 200 1, p. 1 12.

[7] Sun: German Contemporary Property Law, Law Press, 1997, p. 30.

[8] Ping Jiang: Civil Law, China University of Political Science and Law Press, 2000, p. 395.

[9] Qu: "On usufructuary right", Hunan People's Publishing House, 1999, p. 5.

[attending] Wang Liming: Research on Property Law, Renmin University of China Press, 2002, p. 4 12.

[? ] Qian Mingxing: On the Characteristics and Social Functions of Usufructural Right, Law and Social Development, No.3, 1998, p.8.

[? Yin Fei: usufructuary right of property law, China Law Press, 2005, p. 27.

[? [Germany] karl Larenz: General Theory of German Civil Law, Wesley Wang, Law Press, 2003, p. 436.

[? [Germany] karl Larenz: General Theory of German Civil Law, Wesley Wang, Law Press, 2003, pp. 378-379.

[? ] Qian Mingxing and Li Fucheng: Concept of China Property Law, edited by Cai Yaozhong: Research on China Real Estate Law (Volume I), Law Press, 2002, p. 1 19- 120.

[? ] Qian Mingxing: Research on the usufructuary right system in China, Peking University's doctoral thesis 200 1, page 8 and 12.

[? ] I am giving a lecture to graduate students, and some students think that the improvement of things should belong to the lower concept of factual punishment. Therefore, the perfection of usufructuary right belongs to factual punishment. But I think the improvement of things is different from the actual punishment. The former is to improve the object without damaging it, so as to increase its value and use value, such as laying the floor for the living room of the house; The latter is the destruction or change of the object itself, or the demolition of the house. Therefore, it is necessary to distinguish the improvement of things from the actual punishment. Because of this, I think the power of ownership includes not only possession, use, income and punishment, but also other powers such as improvement.

Other related:

/article/default.asp？ id= 17466

On the development trend of usufructuary right system

/product . free . 8 1 13507. 1/

On the effectiveness of usufructuary right

For reference only, please learn by yourself.

I hope it helps you.