Civil Law Theory of Property Rights

Author: Xie Zuoquan
Editor: Zhang Yue et al.
Publisher:
Publish Date: 1999-01-01
Features: Property rights are closely related to social life. The study of property law must combine legal theory with practical reality and understand its application to be correct. Therefore, while it is essential to master the provisions and general theory of property law, excessive speculation should not be neglected. Moreover, property law has many practical issues, but due to the lack of reference materials, handling them is often challenging. Thus, this book aims to balance both aspects. To avoid excessive length, controversial doctrines, noteworthy practical views, and the author's immature opinions are included in the legal interpretations, along with references to relevant works and papers, to provide a pathway for those who wish to study property law. By following this guide, they can expand the field of property law and contribute to its growth. This is the author's sincere hope and the reason for the book's hasty publication. Due to its extensive content, the book is divided into two volumes.
Excerpt:
A security right is a value right, primarily characterized by the priority of controlling the exchange value of the subject matter. The means to realize this control and achieve priority of payment is the right of alienation of the exchange value of the subject matter, which allows the exchange value of the subject matter to be directly converted into money or other forms of value that can satisfy the claim, thereby ensuring the priority of payment for the secured claim. This is called the right of alienation. Scholars refer to this feature of security rights as their value nature. This value nature is particularly prominent in mortgage rights and rights of pledge, which do not require possession of the subject matter. In contrast, movable property pledge rights and retention rights are less so, as they still involve possession and control of the subject matter. Additionally, the enforcement of security rights may involve acquiring ownership or possession of the subject matter (e.g., movable property). In this regard, security rights also contain characteristics of controlling the physical substance of the subject matter, though this characteristic is not the primary one and is usually latent.
(2) Security rights are rights established on the property or rights of debtors or third parties. Since the establishment of security rights is intended to ensure the repayment of debts using another's property, they must exist in the property or rights of debtors or third parties other than the creditor. While there are exceptions where security rights exist in the debtor's or creditor's own property or rights (762, 763), these are merely exceptional cases. Furthermore, security rights must exist in specific property or rights of others, as the object of a right in rem must be specific, which is not unique to security rights. Therefore, security rights cannot be established on any property or rights currently owned or potentially obtainable by debtors or third parties. However, some argue that the specificity of the subject matter of a security right is sufficient if the subject matter is likely to be specific at the time of enforcement and is indeed specific at that time, without needing to be specific at the time of establishment. Examples include movable property pledges on inventory in warehouses under foreign law (e.g., U.S. Uniform Commercial Code § 9-1204) and floating charges under Anglo-American law. While these may represent future trends in security rights, under civil law, they are unlikely to be established unless specifically legislated in the future.
Moreover, since security rights are value rights, the exchange value of the subject matter must have the potential for alienation, so the subject matter must generally be transferable. However, the value nature of retention rights is weaker, so the transferability of their subject matter is of secondary importance.