The present situation of China's property right system (can be compared with the old and new property right laws)

First, the current situation of the legal system of real right in China

At present, there is no property law in our country, and its manifestations are: general principles of civil law, guarantee law, land management law and urban real estate management law. It can be seen that the legal system of real right in China is scattered in various legal systems. The General Principles of Civil Law confirms the property ownership system and other property rights related to property ownership. The Security Law clearly stipulates that security interests include mortgage, pledge and lien. The Land Management Law and the Urban Real Estate Management Law clearly stipulate land use rights and house ownership. It can be seen that China has basically formed the system and system of real right. At present, the system has the following significance:

Clarifying the ownership of property rights is of positive significance to solving property rights disputes. For example, disputes between two brothers over the ownership of houses can be resolved through courts and legal channels. If the court solves this problem, it must first confirm the real right, which is based on the General Principles of the Civil Law and the corresponding legal provisions. With these legal systems, we can play the role of quota indicators.

Protect the property ownership and related property rights of natural persons and legal persons. When the property of a natural person or legal person is damaged, you can take up legal weapons and ask the injurer to eliminate the infringement and restore the original state, and have the right to demand compensation from others. For example, the situation upstairs and downstairs, such as the shed built by the downstairs residents, has affected the use of the upstairs residents. The upstairs residents can sue the downstairs residents according to the property right system and ask them to dismantle the illegal buildings. This ensures the normal use of the property by the upstairs residents and makes the property accessible, which is the protection of rights.

The establishment of the real right system, especially after the reform and opening up and the promulgation of the General Principles of Civil Law, has a positive significance for consolidating the achievements of reform and opening up and preventing abnormal phenomena. Just now, several scholars introduced the real right system in France. We believe that the determination of the French Civil Code is of positive significance for consolidating the achievements of bourgeois revolution and preventing the restoration of feudal forces. Similarly, China's General Principles of Civil Law is also of positive significance for consolidating the achievements of reform and opening up. The General Principles of Civil Law establishes ownership and rights related to ownership. The company law also clarifies the property rights of enterprises, which is of positive significance for state-owned enterprises to engage in independent operation, promote enterprise reform and opening up, and promote social opening up. The existing property right system plays an indelible role in promoting the development of market economy, which is an exchange economy based on division of labor, and its core is the rational allocation of resources in the market. It needs to be exchanged, but the exchange needs two preconditions: one is the property that can be exchanged, and the other is to dispose of the property according to one's own wishes. First of all, the property right system establishes the ownership of property rights, which is caused by the appearance of exchangeable property; Second, the establishment of the property rights system gives everyone a kind of control, comprehensive control, and can use the property for their own use or trade property, which helps to promote the market and promote the development of the market economy. Therefore, the property rights system in China can play a role in promoting market development. However, at the same time, there are still some problems in China's existing property rights system. These problems can be summarized as follows: the guiding ideology of equal protection of legal property is not clear. Under the condition of market economy, civil subjects and economic subjects have equal status, but civil subjects have no status difference. For example, Article 1 of China's Contract Law clearly stipulates that this Law is formulated in order to protect the legitimate rights and interests of contract parties, maintain social order and promote socialist modernization. It can be seen that the object of contract law protection is the subject of contract. For the contract subject, there is no further subdivision. What kind of contract subject, state-owned enterprise or private enterprise? It only stipulates the subject of contract, and equal protection of the subject of contract is the concept of market and the concept of civil law. Civil law requires equal protection of civil subjects, but the general principles of civil law stipulate that state property is sacred and inviolable. When it comes to collective property and citizens' personal property, it is emphasized that collectively owned property is protected by law and citizens' legitimate property is protected by law. Generally speaking, state property, collective property and personal property are all protected objects of property law, but this expression makes people feel that state property is special. State property is inviolable, collective property is protected by law, and personal property is protected by law. This slight difference means a difference in the level of property. As an equal protection of property, the idea of integration is not clear enough, which is only one aspect of the improvement of China's property rights system. Second, China's current property rights are not complete enough, and the incompleteness of the property rights system is manifested in the lack of relevant systems. When it comes to housing real estate, there is no relevant building ownership system in China. Although the law stipulates that every small business owner has the ownership of the house, many small business owners can form a property management system and set up property management committees on many properties. The State Council has specially stipulated the Property Management Regulations, but what is the legal basis for the State Council to formulate the Property Management Regulations? Theoretically, it should be said that it is the building ownership system. This system emphasizes that the owner of each building and each dedicated part enjoys independent ownership, and the owner enjoys the right to use the part. The owner has the right to use some of the facilities, including the hall, walkway, roof, external wall load-bearing structure and so on, and has the same management right. * * * The same management right embodies the membership right and decision-making right in the same relationship, and these three rights constitute the system of differentiated ownership of buildings. This system has not been fully established in our country. In addition, in the bona fide acquisition system, when the legal possessor illegally transfers other people's property, if the transferee is bona fide and pays the consideration, should his rights be protected? The answer is yes, but there is no relevant system. In China, these systems are determined by the judicial interpretation of the Supreme People's Court. The relevant judicial interpretation involves the system of bona fide acquisition, but it is not perfect. In addition, there is a lack of possession system and floating guarantee system. The lack of these systems has seriously affected economic development. Therefore, in this sense, China's real right system is not complete enough, and it is not perfect enough.

In China's real right system, the nature of related rights is not clear enough, and the content industry is not clear enough. For example, the chapter on property rights in the General Principles of Civil Law mentions ownership and property rights related to ownership. The concept of ownership has been very clear, and what is the concept of property rights related to ownership is still very vague, which will lead to ambiguity in understanding. In addition, China's company law determines the company's property rights and uses the expression of "property rights system". Property right is an economic concept, but it is not a legal concept. Does property right mean ownership? If it is ownership, why not use the concept of ownership? These basic elements and concepts are not clear, which also affects economic development. In addition, in the process of commercial housing sales, transaction registration is required. Our existing system emphasizes registration, so what does registration mean? What is the effect of registration? Is it just the effect of filing, or is it given certain rights after registration? At present, the unclear system also affects the perfection of the real right system.

Second, the improvement of the legal system of real right in China.

Because the legal system of property right in China is not perfect enough, people in China began to draft property right law 1998. There are several steps in drafting the property law. First, experts are entrusted to put forward the draft, not authorized by the Standing Committee, but entrusted by the Legal Work Committee to think about the problem, which is then drafted by the National People's Congress and then submitted to the Standing Committee for approval. 1998 drafted the draft civil law, which has gone through three steps: the first step is to complete the formulation of the contract law within a period of time; Second, draft the property law; Third, complete the formulation of the civil code. Now, the first step has been completed, and the second step is to draft the property law. In 2002, the the National People's Congress Standing Committee (NPCSC) Law Commission issued a draft of the Property Law for comments, which was handed over to the people of the whole country and sent to the National People's Congress for deliberation. On June 5438+ 10 this year, the 10th the National People's Congress Standing Committee (NPCSC) submitted this draft to the National People's Congress Standing Committee (NPCSC) for deliberation for the second time. The draft of the second review was submitted for consideration after a lot of changes were made in the last review.

The draft currently submitted for consideration consists of five parts.

Part I: General rules. The general rules stipulate the general rules of real right, such as the definition of real right, the basic principles of real right law, and the adjustment objects of real right law. At the same time, it stipulates the change of real right, including the establishment, change and elimination of real right, how to change the whole system, and also stipulates the protection of real right. This is the general part.

Part II: Ownership. Ownership stipulates the following contents: for example, it defines ownership, establishes the content and power of ownership, stipulates the basic types of ownership: state ownership, collective ownership and private ownership, and also stipulates the legal basis for distinguishing all these involved in building and property management. As mentioned above, there is no system of distinguishing ownership in China at present. The draft stipulates the system of distinguishing the ownership of buildings, and stipulates the adjacent relationship, ownership and acquisition of ownership.

In the third part, the usufructuary right is stipulated. Firstly, the usufructuary right is generally stipulated and defined.

The fourth part stipulates the security interest, and at the same time stipulates several types of security interest, such as mortgage, pledge, lien, floating guarantee and priority.

The fifth part stipulates the system of possession. Set a set of effects of possession, such as obtaining property ownership immediately according to possession. If a third person acquires another person's property in good faith, he may acquire ownership. For another example, possession is a presumption of possession by means of legal provisions, and ownership can be obtained based on preemption.

The features of these drafts are as follows:

Establish the guiding ideology of equal protection of legitimate property. This issue has been controversial in academic circles, theoretical circles and practical departments. The focus of the debate is whether state property should be specially protected. How is it reflected in legal documents? From the language of expression, the General Principles of Civil Law emphasizes that state property is sacred and inviolable, and collective property and personal property should be protected. This kind of expression is different, the words are different, and the feeling of use is different.

Property rights are classified by ownership, which can be divided into state ownership, collective ownership and private ownership.

About ownerless things. Unclaimed property usually belongs to the state, so do unclaimed lost property. This is an opinion. On the contrary, the protection of property rights protected by property law should be "equal protection", which does not mention the sanctity of state property; Second, equal protection does not distinguish between the object of real right adjustment and the object, and does not distinguish what property it is. Third, things that are unclaimed and unclaimed are not simply owned by the state, but are regulated according to the corresponding legal system, and the principle of preemption is generally applied. After a long debate, this draft adopted a compromise statement, which showed that it no longer mentioned the sanctity of state property, but emphasized the equal protection of ownership and property rights, but it classified property rights and ownership rights. Points: state-owned system, collective system and private ownership. The third question is about unclaimed pickup trucks, which are not owned by the state. Unclaimed pickups are obtained by preemption. If the found things are sent to the state organs for publicity and collection, after a certain period of time, no one claims them, and the found things belong to the person who found them, and no longer belong to the state. This method is adopted in order to reach a compromise. This is a breakthrough of China's legislative guiding ideology.

The draft submitted by our country clarifies the meaning and defines the content of real right. In the process of drafting, there are some differences on whether to define real right. There are two opinions here. The first opinion is that there is no need to define real right, because the definition of real right has been clearly stated in textbooks. The second opinion is that the real right should be defined, because the concept of real right of Chinese people is relatively weak at present, and some leaders have insufficient understanding of the concept of real right. It is necessary for the law to define the real right and reveal its meaning. The draft adopted the second view. Article 2 of the draft stipulates the concept of real right. What are the connotations and elements of the concept of real right? Theoretically, there are two views. First, this concept contains at least three elements. First, the object of real right is "thing". Second, the content of real right includes two aspects: first, "the right to control"; Second, "profit". Third, the negative aspect of the content of real right is exclusiveness. Another view holds that the definition of real right only needs to grasp two elements, one is the object of real right, and the other is the right of domination. Together, it is stated in the draft that real right is a right for the subject of right to control things. The rights of such disposables include ownership, usufructuary right and security right. He ruled out this exclusivity. Theoretically speaking, there is no essential difference between the two elements or the three elements, because the real right fundamentally comes from the ownership of things. The essence of real right is the ownership of things. People have monopoly control over things, exclusive rights and the right to exclude others' infringement. Theoretically, there is no difference between three elements or two elements. Why is the legislation controversial? The key point is that at present, the people in our country have a weak concept of property rights and insufficient understanding of exclusivity, so we should write "exclusivity". In this way, the concept of real right is formed: the civil subject directly controls specific things and excludes the right of others to interfere.

The draft establishes the basic principles of the property law. The basic principle of China's property law is the basic principle of China's legislation, the principle of the judicial department and the principle that people should follow when engaging in civil activities. The draft lists some basic rules in detail, and now briefly introduces the basic principles. First, the legal principle of real right. In other words, the content and types of real rights depend on the direct provisions of the law. It can't be created by the parties, because the real right is a social relationship formed by the right subject and any unspecified obligation subject. In this kind of social relationship, what kind of rights the subject of rights has can only be stipulated by law and cannot be created arbitrarily, otherwise it will affect the security of transactions. Especially in China, land can only be owned by the state and the collective, and private ownership cannot be created. The second principle, the principle of one thing and one right, means that one thing cannot have two owners, and one thing can only have one ownership, but not two ownership. The principle of "one thing, one right" is of positive significance for maintaining transaction safety, encouraging transactions and promoting market development. Third, the principle of property rights disclosure and publicity. The so-called publicity refers to the enjoyment of property rights and the acquisition, change or elimination of property rights, which must be carried out in a certain way of publicity. This is propaganda. Publicity, on the other hand, is a series of legal relations formed by believing that it has real right according to the form of publicity, which should be confirmed. Even if the publicity content is inconsistent with the substantive content, it should be determined according to the publicity content. For example, a husband and wife have a house, but it is registered in the man's name. Now one party has sold the house to a third party, and the third party doesn't know that the house is jointly owned by husband and wife. He just bought a house according to the phenomenon of her husband's ownership recorded in the real estate license. Now his wife opposes it and thinks that the house can't be bought or sold without her consent. The court's verdict is that the husband violated the wife's ownership, but in order to protect the interests of the bona fide third party, he confirmed the ownership of the bona fide third party. This is the embodiment of the principle of publicity of property rights established in the draft property law of our country. In the way of publicity, real estate shows its publicity by registration, and movable property shows its publicity by delivery. What is the effect of registration? The provisions of the draft are different from those of the law. The draft stipulates that registration is a condition for entry into force. Without registration, the validity of real right will not happen. In France, registration is the basic element of confrontation. Without registration, property rights can be obtained, but it can't confront a bona fide third party. Real estate registration is the basic principle, but there are exceptions, such as rural contracted management rights, forest land use rights and chattel mortgages are not registered. These exception rules are based on the French model. For movable property, the publicity principle of this formula is a kind of delivery, and delivery is the transfer of possession. The fourth principle is the principle of priority of real right. In a thing, if there are both property rights and creditor's rights, then property rights take precedence over creditor's rights. For example, someone sells his house to A, signs a sales contract with A, gives the house to A to live in, and sells the house to B at the same time, and goes through the formalities of property right transfer with B, and registers the house in B's name. Now B wants to obtain the possession and use right of the house, so he brings a lawsuit to the court to ask A to leave, but A thinks that the contract he signed comes first and the residence comes first, so the house belongs to him. B thinks he has registered, so the house should be B's. The judge ruled that the house was B, because B enjoyed the real right. The transfer of real estate in China emphasizes the effectiveness of registration. Although someone first established a sales contract with A, but did not go through the formalities of registration and transfer, so A could not obtain the property right, while B went through the formalities of transfer and obtained the property right. This is the meaning of real right priority. I have stated the types of real rights in the Outline, mainly including property ownership, land contractual management right, construction land use right, homestead use right, woodland use right, residence right, mortgage right, pledge right, lien, and also stipulated the possession system. At the same time, the draft also stipulates the pawning right, which embodies the characteristics of China.