Sun Xianzhong: A Brief Discussion on the Implementation of the Scientific Principle in China's Property Rights Legislation
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Property legislation is the guarantee of the operation of the country's economic foundation and the basic rights of the people, and occupies a core position in China's civil legal system. China's property rights legislation has been completed for more than 20 years from the initiation of the property law to the compilation of the property rights section of the civil code, and it is an institutional system with its internal logic established on the basis of the principle of scientific legislation on the basis of China's national conditions. ** The General Secretary has repeatedly emphasized scientific legislation. Understanding the scientific nature of China's property rights legislation is the prerequisite for mastering the ideas and rules of property rights legislation, and is a necessary condition for ensuring the realization of the legislative purpose. China's property rights legislation project was started in the period when the planned economic system was transformed into a market economic system, and it is necessary to abandon the old theories under the planned economic system and implement new theories that can meet the needs of the modern market economic system. This kind of national background means that there will inevitably be strong controversies in legislation, such as the "property law turmoil" that occurred in 2005. Even so, China's property rights legislation is still based on the principle of scientific legislation, not only in terms of legislative guiding ideology, basic legislative theory to complete the clean-up of the planned economic system, but also in the construction of the property rights system to carry out a large number of institutional innovations, especially at the level of analysis and adjudication of the law and technology to establish a system of rules that meet the requirements of the modern market economic system, to a certain extent, to achieve the transcendence of the inherent knowledge system of the civil law system. From the perspective of the scientific nature of property rights legislation, it is first necessary to have a clear understanding of the importance of the Civil Code's inclusion of property rights as the second part after the General Provisions of the Civil Code. This is because placing property rights at the top of each sub-section contains the meaning of attaching importance to the basic rights of ordinary people. In addition, the property rights section has the role of guaranteeing and standardizing the operation of the economic base. In addition, the legislative basis for personality issues and personality rights has been stipulated in the section of the General Provisions, which is basically a provision for resolving the issue of tort liability for persons and personalities, and it is not in line with the legislative logic to place personality rights at the top of each subpart. The basis of China's property legislation is the Property Law enacted in 2007. At the time of the creation of the law, the principle of scientific legislation was implemented to a certain extent, which was reflected in the implementation of the spirit of the 2004 constitutional amendment in the property law and the recognition of the principle of equal protection; In line with the requirements of the market economy system, it has become one of the cores of the construction of the legal system of China's market economy system; Recognize and adopt the basic principles of property law, recognize the unique institutional framework of property rights, and analyze the basic law techniques of adjudication. However, there are still some shortcomings in the legislation of the Property Law, which are mainly manifested in the fact that the Property Law does not clearly follow the principle of subject specificity to completely solve the practical problem of "the virtualization of public property rights"; It does not solve the problem of expression of intent in the change of property rights; There is no explicit recognition of possession as a form of publicity; The presumption of correctness of rights under the principle of publicity is not recognized. Despite this, China's property law has made brilliant achievements in safeguarding the operation of the country's economic foundation, protecting the basic rights of the people, and realizing the transformation and updating of the basic principles of property law. Some of the hidden dangers left behind by it have been partially remedied in the process of compiling the Civil Code in 2020. The author believes that, from the perspective of the logic of the scientific system, the scientific nature of property law should include the compatibility between the basic concepts, systems and legislative structures of legislation and the actual socio-political and economic development, the systematization and self-consistency of its own legislation, and the systematization and self-consistency of legislation with the national civil and commercial legislation and the entire legal system formed on this basis. The logic of legal relations is the logical basis of property law, and the characteristics of legal relations of property rights lie in the "three specifics", that is, specific people, specific things and specific rights. In addition, the scope of property law should include three categories: the institutional scope for establishing the order of property control, the institutional scope for the change of property rights, and the institutional scope for the protection of third parties. In terms of establishing the institutional scope of the order of property control, the function of the property law is to "settle disputes", and the way to achieve "fixed division and stop disputes" is to establish a scientific system of property rights and a system of publicity of property rights. In terms of the institutional scope of changes in property rights, the theory of acquisition confuses the right of claim arising from a valid contract with the right of domination in rem. Changes in property rights need to be publicized in order to obtain legal recognition and protection of the legal effect of world rights. Based on the principle of publicity of real rights, the author has established corresponding publicity methods according to the different types of immovable property, movable property, special movable property and rights. These institutional ideas are fully embodied in the property law. In terms of the scope of the third-party protection system, according to the theory of acquisition by the third party, the rights acquired by the third party under the contract are invalid with the invalidity of the contract, and the ownership of the subject matter should of course be returned to the original thing. This theory not only fails to protect the interests of third parties, but also undermines the security of transactions. Based on the scientific nature of jurisprudence, the author reconstructs the legal system for the protection of the interests of third parties from the perspective of changes in property rights based on legal acts, that is, recognizes the basic value of the theory of bona fide acquisition, but transforms its theory of "subjective good faith", that is, the "good faith" of the parties is determined based on the publicity of real rights. This view has been adopted by Articles 106 and 107 of the Property Law, and has also been inherited by the Civil Code. In the institutional scope of changes in property rights and third-party protection, the principle of distinction proposed by the author has core significance, that is, in the changes in property rights that occur on the basis of legal acts, the legal effects of contractual debts and their legal basis should be distinguished from those of the changes in real rights and their legal basis. In the modern market economy, the fact that a contract should be performed does not mean that the contract must be performed, and the absence of actual performance does not affect the validity of the contract. In the process of enacting the Civil Code, the principle of distinction has been thoroughly implemented, first Article 51 of the Contract Law was repealed, and then Articles 597, 502, Paragraph 2 and 580 of the Civil Code have also been updated and transformed in accordance with the principle of distinction. The publicity system is the institutional guarantee for the realization of the three adjustment categories of the Property Law. The publicity of real rights is not the publicity of the expression of intent of the parties' creditor's rights, nor is it the effect of giving the right of domination to the change of the real right in a certain way of publicity under the mode of "formalism of creditor's rights", and its essence is the publicity of the parties' expression of intent to perform the contract and establish and transfer the real right through the performance of the contract. That is, through publicity, the expression of the inner intention of the parties for the purpose of changing the property right obtains the effect of the real right. Chapter II of the Property Law of 2007, "Establishment, Alteration, Transfer and Termination of Property Rights", implements the principle of publicity in the change of property rights, and establishes a legal basis that conforms to the legal effect of absolute and dominant rights in real rights based on the principle of publicity of real rights, and no longer takes the creditor's right contract as the direct and only legal basis, and this principle continues to be implemented in the legislative process of the Civil Code. There are some proviso clauses in the change of property rights that occur under legal acts. These proviso embody the logic of social life where there are general principles and exceptions, and are aimed at fully guaranteeing the security of transactions and the major interests of the masses under the conditions of a market economy. Among them, the proviso clause of Article 352 of the Civil Code (Article 142 of the Property Law) is of particular significance, but it has been ignored for a long time. This proviso clause means that if the minority owner pays the full price and accepts the delivery of the house, his ownership should be recognized and protected by law. This clause has been strongly opposed by some scholars because it breaks the creed that registration is the only credibility under the theory of debt formalism. The Provisions of the Supreme People's Court on Several Issues Concerning the Handling of Enforcement Objections and Reconsideration Cases by the People's Courts basically embodies the basic significance of the proviso clause of Article 352 of the Civil Code, so that the housing rights of hundreds of millions of people who purchase commercial houses are protected. At the level of legal theory, its promulgation announced the abandonment of the theory of debt formalism and the view of "the sole credibility of registration". Section 4 of Chapter 3 of the General Provisions of the Civil Code stipulates that "special legal persons" are the substantive subjects of civil rights, which guarantees the basic rights of investment and operation of public-owned enterprises, and truly implements the requirements of the legal and scientific principle that the state bears the responsibility of investors. Article 96 of the Civil Code stipulates the special legal person system, giving a clear legal status to the legal person of government organs, rural collective economic organizations, urban and rural cooperative economic organizations, and grass-roots mass autonomous organizations, which not only fills in the huge gaps in the construction of the system of civil subjects in China, but also establishes a legal basis for relevant organizations to engage in civil activities. The specificity of the subject is of central significance in the entire civil law system. Civil subjects are not only the subjects of rights, but also the subjects of obligations and responsibilities. From the property law to the civil code, the principle of scientific legislation has basically been well implemented. Property legislation is a highly practical law, and the development and operation of China's economic system and the protection of people's basic rights are closely related to it. However, property legislation is also a law with rigorous legal logic, and it is of course important to study and implement property rights legislation and grasp the political nature of the guiding ideology, but it is equally important to grasp the scientific requirements therein. Practice has proved that only by implementing scientific jurisprudence in the process of legislation, implementation, analysis and adjudication of property rights can the practice of the rule of law in property rights be guaranteed to be stable and far-reaching. [Sun Xianzhong: Member of the Chang'an Street Reading Club, member of the Faculty of the Chinese Academy of Social Sciences].
Note: Authorized to publish, this article has been selected and included in the "Chang'an Street Reading Club" theoretical learning platform (People's **, People's Political Consultative Conference Daily, Beijing**, Xinhuanet, Central**, National Party Media Information Public Platform, Horizon, Beijing Time, Surging Government Affairs, Phoenix News Client "Chang'an Street Reading Club" column synchronization), * must be uniformly marked "Chang'an Street Reading Club" theoretical learning platform source and author.
Editor-in-charge: Liu Xingyue；Preliminary review: Cheng Ziqian, Chen Jiani; Re-examiner: Li Yufan.
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