What are the provisions of the Property Law on property ownership?

First, the private nature of property law.

Since Roman law, there has been a distinction between public law and private law. The law to adjust the public power of the state is public law, and the constitution, administrative law and procedural law all belong to public law; The law to adjust the property relationship and personal relationship between equal subjects is private law, and both civil law and commercial law belong to private law. Property law is an important part of civil law, which aims to adjust the rights and obligations of private individuals to property, so it belongs to the category of private law. Because the property law always involves the interests of the state, society and the third party, and has a great relationship with social public welfare, there are often many provisions on public welfare in the property law. For example, Article 765 of the Civil Law of Taiwan Province Province stipulates: "All people have the right to freely use, profit from and dispose of their own property within the scope prescribed by law, excluding interference from others." The public law provisions in the property law do not affect the essence of the property law as a private law.

Second, the mandatory nature of the property law.

Property law is an integral part of civil law, and it is the general name of legal norms to adjust the direct control and utilization of things by civil subjects. Its contents include the types, powers, effectiveness, exercise, modification and protection of property rights and other specific systems. Property right has a strong exclusiveness, involving third parties and social welfare, so the provisions of the property law are mandatory, and the parties must abide by them and cannot be excluded by agreement. Predictability is the most important feature of property law. For example, Mr. Xie Zaiquan believes that "the property law has an effect on the world because of the stipulated property rights, always involving the interests of the third party, and strives to unify the content to ensure the enjoyment of property rights and the safety of transactions. Most of its provisions are mandatory and cannot be arbitrarily changed by the parties. " This compulsion of property law is the primary feature that distinguishes property law from creditor's rights law. The creditor's rights law is determined by its nature, and usually allows the parties to exclude its application by special contracts or even trading habits, which is an arbitrary norm in principle.

The mandatory provisions in the Property Law mostly involve the types and contents of property rights. "The property law directly sets rights and obligations for the parties through mandatory norms and draws a clear line of rights, thus reducing transaction costs, promoting the cooperation of the parties and promoting the effectiveness of things."

Third, the inherent legitimacy of property law.

Property law has the color of local law because of the differences of countries, nationalities and historical traditions, which is the inherent legitimacy of property law. This attribute makes the property law and the creditor's rights law have obvious differences. The creditor's rights law is a basic legal system about market transactions, so most creditor's rights laws in the world are universal and can easily evolve into a worldwide international legal system. For example, the United Nations Convention on Contracts for the International Sale of Goods, which was signed in Vienna on April 1980+0 1, is universally applicable among contracting parties and plays an extremely extensive role in the field of international trade relations. Property law is different from this, because different countries have entered modern civilization in different periods and processes, which leads to considerable differences in the content and composition of property law in different countries. For example, France, as a capitalist country, adopts the principle of openly opposing the essence. According to this principle, once the parties form the expression of intention of the change of real right, that is, the legal effect of the change of biological rights, it only has no social credibility and cannot oppose the bona fide third party before it is publicized according to law; On the other hand, Germany adopts the principle of establishing publicity. Under this principle, the change of real right not only requires the existence of a real right agreement between the parties independent of their reasons and actions, but also needs to be publicized by means of registration or delivery, otherwise it will not have the legal effect of the change of biological rights. Mr. Xie Zaiquan pointed out that it will be difficult to decide which is better or worse if it is explained only from a country's economic environment, social needs and the perfection and soundness of relevant supporting systems. France and Germany adopted antagonistic essentialism and established essentialism in property rights reform, which was not the result of some simple factor, but determined by the unique economic, cultural and social background of each country at that time. In addition, because the property law is closely related to the survival and development of people in various countries and the country's economic system, the content of property law in various countries, especially the provisions on important means of production such as land, is often very different.

Our country was restructured in the late Qing Dynasty, and the Civil Code was drafted with reference to the European legal system. The provisions of the Property Law pay special attention to respecting our own national customs. For example, the establishment of a special chapter (Chapter VIII) to stipulate pawning rights (a unique system in China) is an appropriate example of respecting state-owned customs. After the founding of New China, the socialist public ownership of the means of production was gradually implemented, and the land ownership was owned by the state and the collective, and the land ownership itself was not allowed to be bought or sold. This makes the property right system in China more special than that under private ownership (especially private ownership of land).

Fourth, the publicity of property law.

Modern civil law is based on the principles of absolute ownership, freedom of contract and liability for negligence. According to the principle of absolute ownership, the parties can freely use, benefit and dispose of their own property. Although this principle has promoted the development of free capitalist economy, it overemphasizes individual interests and ignores the overall interests of society, exacerbates the conflict between individual interests and social interests, hinders the socialization of production and large-scale economic development, and even leads to the phenomenon that individuals abuse ownership to harm the interests of others and society. Therefore, since the end of19th century, due to the change of social situation, the concept of individualistic ownership has gradually declined, and the legislation of various countries has to modify the absolute principle of ownership, so that ownership bears social obligations, and the exercise of ownership should take into account the public interests, which is for the socialization of ownership. The socialization of ownership, in the final analysis, requires all people to strictly abide by the principles of public welfare, honesty and credit, and no abuse of rights when exercising ownership, especially when the parties exercise ownership, they must conform to public purposes, otherwise their actions will be judged illegal and prohibited. As a result of this development, the property law has a public color, which is in sharp contrast with the so-called private color of the creditor's right law, which is limited to the interests of both parties in principle.

Characteristics of property law

Legalism of real right is a basic principle of modern national real right law. The so-called legal property right means that there are unified legal provisions on the types and contents of property rights, and it is not allowed to create property rights freely according to the will of the parties.

Definition of real right: it is the right of the subject of right to directly control a specific object and enjoy its rights and interests according to law.

Features: 1, in terms of the nature of rights, real rights are dominant rights, and obligees can exercise their rights without the help of others' actions; 2. Within the validity of rights, real right is absolute; 3. On the object of right, the object of real right is thing; 4. As far as the effectiveness of rights is concerned, real rights have priority and recourse; 5. On the occurrence of rights, the establishment of real rights adopts legalism, and the parties shall not create new real rights or change the contents of real rights at will; 6. In the method of right protection, the main purpose of protecting real right is to restore the right holder's control over things, with the emphasis on the method of "claim on things".

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