Important practical significance
The real right construction system in the civil law system mainly involves two inseparable important contents: one is the legal relationship between ownership and other real rights; The second is the legal structure of real right and creditor's right. As far as the first question is concerned, we should first analyze the embryonic form and development process of "ownership" in Roman law. The concept of absolute ownership in Roman law has gone through a long process. It was not until the late empire that the word "proprietas", which was closest to modern ownership, appeared, and the word initially had a relatively complete definition of individual ownership. To be exact, the concept of ownership in Roman law is only an empirical confirmation of individual ownership in fact, and there is no complete definition and special discussion of ownership in the encyclopedia of civil law. This is because the formation of personal ownership in Roman law must meet two conditions: first, the separation of personal and family property. In early ancient Rome, real estate was controlled by parents, "my father" was the only subject of property rights, and other members did not have independent property control rights. At the same time, the family in ancient Rome was actually a political unit corresponding to the country for a long time. Therefore, family patriarchy can not be reflected in the property rights of civil and commercial subjects, but mainly in a public order. Only in the late Roman Empire, when individuals obtained independent property through the system of "special property", did individual property rights really show as a kind of "personal ownership". The second is the expansion of civil law rules. In the early days of Rome, the ownership of civil law was mainly enjoyed by citizens and nobles of the Roman city-state, but foreigners could not enjoy the ownership of civil law. At the same time, the transfer methods of provincial land and Roman land are different according to law, which leads to the fact that the ownership of civil law is still a symbol of identity and privilege. Only with the expansion of the territory of the Roman Empire, the full absorption of natural law ideas and the establishment of civil law rules, Roman talents paid attention to the development and regulation of abstract legal relations as private property, thus breaking through the barriers of privilege and status and finally integrating civil law with civil law. Therefore, individual ownership has become an important right in private law that transcends national boundaries and races.
Property right structure system in civil law system
Independence and Uniqueness As far as "ownership" and "other property rights" in Roman law are concerned, in modern times, it is generally said that other property rights appeared after the scientific definition of ownership, which is doubtful. In fact, ownership is the result of a large number of easements and usufructuary rights. "proprietas" (ownership) came into being in the late empire, and it was also used relative to usufructuary right. It can be considered that it is precisely because of the appearance of easement that there is an objective requirement to clarify the status of land owners in law. The earliest easement in ancient Rome was the easement of cultivated land, and every land user remained undivided when using the divided land. At that time, the concept of easement had not yet formed, and people thought that multiple users had the right to obtain easement. Therefore, the early servitude and ownership were in a state of chaos, and there was no clear boundary. When the easement is no longer limited to the specific area used by * * *, the easement is independent. However, it is worth noting that easement was not an independent right at that time, but was included in the category of things as "intangible things", and its transaction mode was almost rough. It can be seen that the Romans expanded their property from the concept of "things", and his real right was a legal issue of "intangible things" to some extent. This kind of thinking will inevitably lead to two results: first, because his real right does not belong to the category of ownership rights, it is impossible to abstract the concept of natural "real right"; Second, the connotation of ownership is rather vague, and it is difficult to form a definition in the sense of pure property rights. Because things include both "tangible" and "intangible", it is impossible to draw the conclusion that ownership is a kind of domination over things, but basically a kind of confirmation of what I own. In addition, in Roman law, easements are not regarded as the product of ownership, but are protected by "easement confirmation litigation" and "quasi-easement confirmation litigation" against all people, which shows that they are set in Roman law.
Have independence and oneness.
It is also worth considering whether Roman law has formed the binary division of real right and creditor's right in modern civil law system. There was no independent debt relationship in early Roman law. The transfer of goods is delivered immediately through complicated procedures. With the separation of delivery in time and space in subsequent transactions, agreements outside complex procedures become the basis of delivery. When the promise contract appeared, the debt was liberated from the shadow of the transfer of things and became an independent legal relationship. However, the Roman law system is still arranged by personal law, material law and procedural law, and the debt law is actually attached to the material law, so it is impossible to have a clear binary division like the civil law of the civil law system today. The reasons are as follows: first, the Romans did not have a thorough concept of rights and were not good at building a legal structure system based on rights; Secondly, Roman law has not yet developed to the stage of highly abstract theory, and it still has strong practicality, and it still cannot generalize many important legal relations into universal principles; Third, Roman law is a system of rights derived from litigation, and rights are only the reflection of legal procedures on actual interests. Right originates from litigation, which makes it dependent on litigation mode and unable to form its own theoretical system independently. Although Roman law makes a distinction between human behavior and material behavior, it is an expression and classification at the operational level, and it cannot be taken for granted that Roman law has completely distinguished property rights from creditor's rights.
Completely distinguish between real right and creditor's right.
Everyone still enjoys full ownership, and the civil law theory of modern civil law countries is developed on the basis of Roman law. However, due to the Prussian general state law and the French Civil Code, other property rights and creditor's rights are still classified as intangible things, the concept of ownership is not expressed as pure property rights, property rights are not abstracted, and the dual system of property rights and creditor's rights has not yet been established. Modern German Civil Code defined things as "tangible things", thus forming a complete concept of "real right", excluding "intangible things" and making them independent real rights and creditor's rights. It can be considered that the code finally completed the complete construction mode of civil property rights in civil law system. Because in the case that his real right is intangible, it is impossible to form a clear definition of ownership and his real right later. Only when his real right and ownership * * * are both types of real right, the relationship between ownership and his real right becomes a problem that must be faced in theory. Therefore, the German Civil Code provides a theoretical possibility for the theory of separation of powers. However, the Civil Code of Soviet Russia further defines ownership as a collection of several powers, and understands the relationship between ownership and other property rights as a whole and a part, forming the theory of separation of powers. China followed the theoretical model of the Soviet Civil Code, and the theory of separation of powers once became a general theory. At present, the theory of "separation of powers" is widely suspected in academic circles, and it is considered that this theory confuses the relationship between ownership forms and ownership functions. If the ownership is embodied in a set of powers, then it is theoretically impossible to explain why everyone still enjoys full ownership when one or more powers are separated. In recent years, the view that his real right also has independence and integrity has been accepted by more and more scholars.
All people still enjoy full ownership.
The systematic establishment of the system of real right and creditor's rights finally established the system of real right in the civil law system, and later the civil legislation in Japan, Switzerland, Netherlands, Soviet Russia and China directly inherited and developed this division. We believe that property rights and creditor's rights, as two rights with different natures and forms of expression, have obvious differences and have certain vitality and adaptability. However, if this division is used as a model to measure the rights of all citizens, its disadvantages are becoming increasingly obvious. In modern society, people actually enjoy more and more interests. These interests are not completely manifested as "the right to control things" or "the right to claim". There are also rights that are separated from the two, such as intellectual property rights and equity rights that cannot be established as "real rights" or "creditor's rights". At present, the legal theorists in civil law countries have questioned the coverage of this division in theory, and even doubted the scientific nature of this division itself. We believe that the method of dividing property right and creditor's right still has its reasonable side. The main problem is that an overly rigid analytical model is formed in theory, that is, all civil rights are tried to be included, and some rights are not allowed to be divorced from "property rights" or "creditor's rights" in nature. Therefore, China's civil law theory should pay enough attention to the property system and study and establish a civil rights system that adapts to the realization of contemporary property rights. At present, China is planning to formulate a property law, which is an important issue that needs our further in-depth study.