The Development of Property Law in China

First, the formation and development of property law

Property law depends on the objective economic foundation of a certain society, but at the same time it confirms and maintains the economic foundation of a certain society. In primitive society, individuals are the limbs of society, and people's possession and utilization of things are in a natural state without right consciousness. Since entering the private ownership society and producing the concept of private ownership, in order to make the acquired property or interests be recognized and guaranteed by law and eliminate the chaotic state of society, the legal system of real right, which initially confirmed the right subject's ownership and control over property, came into being (of course, it was mainly the legal system of ownership at the beginning).

Property law can be divided into three stages from germination, formation to development and perfection:

(1) In the embryonic period of the property law, the initial formation of the property law system was marked by ancient Roman law. Roman law is the first worldwide law of simple commodity relations. Adapted to the simple commodity economy, it divides property rights into ownership and limited property rights, which are divided into easement, permanent tenancy, superficies, pledge and mortgage. The real right of security in Roman law is underdeveloped, and the pawning right and lien have not formed an independent system. Because the concepts of rights and things in early Roman law were not mature and had no clear definition. The property law of Roman law is the most complete property law system in western slave society. At the same time, Germanic countries established a unique property law on the basis of land-centered agricultural economy. Germanic law carried out the principle of group standard, formed a property law system with the use of natural objects as the core, and emphasized the relativity of property rights and the division of ownership nature, which became one of the important sources of property law in Anglo-American law system later.

(2) The period of development and perfection of property law. After the initial formation of the property law in Roman law period, it disappeared for centuries with the decline of the Roman Empire. Later, it was clearly put forward by the medieval annotation law school when explaining Roman law. Because it can meet the needs of simple commodity relations, it is adopted by civil legislation in continental Europe. The perfection of property law is represented by the French Civil Code, which provides a relatively complete system of property law and has made great achievements in content and compilation technology. In addition to providing ownership, it also provides easements and security interests. According to Roman law, easements are divided into personal easements and easements. The usufructuary right is also stipulated in detail, and the right to use is regarded as a property right alone, but the easement is not regarded as a separate property right, but is included in the land contract. Security interest is developed, but there is no strict distinction between real estate pledge and mortgage. The property law system established in the French Civil Code is the most perfect system in the period of free capitalism.

(3) The development period of property law. Represented by the German Civil Code, the concept of real right is formally established in legislation. In addition to the provisions of the French Civil Code, the Property Law also adds various types of property rights: it stipulates usufructuary right and pledge right, and takes rights as the object of property rights for the first time, and also takes some creditor's rights such as preemptive right and land creditor's rights as property rights. Security interests strictly distinguish between mortgage and pledge. This property law has adapted to the new needs of the transition period from liberal capitalism to monopoly capitalism, and has the transitional nature from "individual standard" to "social standard". It has formed a rigorous and thorough system of property law, which has a far-reaching impact on the property laws of Switzerland, Japan and other countries.

The legal system of real right is the legal culture and spiritual wealth created by human beings. The traditional property right system has great absorption and reference for the construction and perfection of China's property right law. It is neither possible nor necessary to advocate the construction of a property law with "China characteristics" in China, because it does not meet the requirements of market economy development.

Second, the development trend of real right and the shift of the focus of real right legislation.

Modern market economy is not a pure laissez-faire economy. Due to the strengthening of national macro-control and intervention, the traditional private law has become "public law", and the traditional theory of property rights has also made a major breakthrough, which has been given a new era content, and property rights have also appeared the trend of socialization, value and even internationalization.

The core mission of traditional property right theory is to maintain the absolute and dominant position of ownership, and endow ownership with sacred and inviolable legal status. People admire the concept of ownership to the extreme, forming a worship psychology for the concept of ownership. Accordingly, the traditional property law pays special attention to the ownership of property, maintains the possession and domination of property by the right subject, and ignores the dynamic realization of property.

The formation of this theory has its profound historical background. In the early days of capitalism, in order to sweep away the feudal remnants on the road of development, enlightenment thinkers emphasized the independence and freedom of the subject personality, held high the banner of human rights, respected individual rights, and linked human property with personal dignity. They think that property right is the extension and expansion of personality right, which infringes on the subject's property right, that is, infringes on the subject's personal dignity. Rationalism, individualism and liberalism have become the common ideological trends in modern capitalist society, which are reflected in the law, that is, the general principles of civil law such as unlimited private rights and absolute freedom of contract have been established.

The traditional theory of real right is based on the absoluteness of ownership, which conforms to the requirements of freedom of contract, competition and transaction of liberal capitalism and contributes to the prosperity of modern capitalist economy and the independence of subject personality. However, its origin and core always focus on the strict regulation and protection of the existence and exercise process of ownership, focusing on the most effective protection of the static ownership of property and the integrity of property ownership itself, and its effectiveness is manifested in the phenomenon that ownership is completely optimized and the right to use is relatively weakened. With the large-scale development of market economy, the traditional property right theory and legislation restrict the optimal allocation and full, reasonable and efficient utilization of social material and natural resources, which increasingly shows its fatal defects in actual economic operation.

We know that the concept of ownership is only a legal abstraction of social material wealth, which emphasizes the static ownership of property, that is, the dominant or controlling state of property by the right subject has been confirmed and guaranteed by law, but this confirmation does not mean that it will definitely promote the growth of social wealth. Highly developed modern market economy and socialized mass production have doubled the demand for resources that are not very rich, so resources are very scarce. Only when resources are reasonably utilized and allocated and the allocation of resources is in an optimal state can the best economic and material benefits be achieved, and the optimal allocation and full utilization of resources must be based on the maximum free flow of resources. However, the traditional theory of real right has set many obstacles to the rational utilization and optimal allocation of resources. This is mainly reflected in: (1) According to the traditional theory of real right, as long as the owner does not harm the interests of society or others, he can exercise the right to control his property at will and can exclude the interference of the state or others. In this way, as long as everyone is unwilling to transfer the actual property and separate power, even if the property is closed for a long time, even if it is obviously wasted or damaged, the law will not ask. In this way, the possibility of optimizing the allocation of resources and realizing value-added in sports is restricted by everyone's possessiveness and dominance. (2) To maximize the utility of resources, people who are most capable of using resources should fully possess and utilize resources. However, according to the traditional theory of real right, when the owner sets his own real right according to law, no matter how extensive the power of the owner is, he does not enjoy the right to dispose of the property in the end, so he is always restricted by the owner's will. In this way, the value of the property owned by the owner can not be fully reflected, and of course, it is far from maximizing social benefits.