Abstract.Strengthening the protection of private property can play an active role in the development of the market economy in our country. The protection of private property under the civil and commercial law is direct and compensatory. The protection of private property under the civil and commercial law should be improved on the basis of property law.
Key words: Civil and commercial law; private property; protection
1.The Privately Owned Proprietary under the Construction of the System of Civil Law
1.1.The privately owned proprietary under two large law systems
The differences of the historical traditions and the customs and habits have resulted in the differences of the relevant systems of private property. In the current stage there are mainly two large law systems: the civil law system and the common law system. Common law system is law developed by judges through decisions of courts and similar tribunals rather than through legislative statutes or executive branch action. The common law system is a legal system that gives great precedential weight to common law, on the principle that it is unfair to treat similar facts differently on different occasions. Civil law system is a legal system inspired by Roman law and whose primary feature is that laws are codified into collections, as compared to common law systems that give great precedential weight to common law on the principle that it is unfair to treat similar facts differently on different occasions. Materially, civil law proceeds from abstractions, formulates general principles, and distinguishes substantive rules from procedural rules. It holds legislation as the primary source of law, and the court system is usually inquisitorial, unbound by precedent, and composed of specially trained judicial officers with a limited authority to interpret law.
1.2.The basic characteristics of the privately owned proprietary and civil law
1.2.1.The privately owned proprietary and the ownership system
From the development process of human history, Ownership is the state or fact of exclusive rights and control over property, which may be an object, land and real estate or intellectual property. The process and mechanics of ownership are fairly complex since one can gain, transfer and lose ownership of property in a number of ways. From the perspective of civil law, ownership is the basic right of the citizens. According to the stipulations of the “property law”, to acquire property one can purchase it with money, trade it for other property, receive it as a gift, steal it, find it, make it or homestead it. One can transfer or lose ownership of property by selling it for money, exchanging it for other property, giving it as a gift, being robbed of it, misplacing it, or having it stripped from one"s ownership through legal means such as eviction, foreclosure, seizure or taking. Ownership is self-propagating in that the owner of any property will also own the economic benefits of that property.
1.2.2.The privately owned proprietary and obligatory right system
Ownership and obligatory right are the core parts of the privately owned proprietary. An exchange is a highly organized market where tradable securities, commodities, foreign exchange, futures, and options contracts are sold and bought. It is the premise condition of the privately owned proprietary. It has satisfied the pursuit of value roles of human beings in the economic activities to the maximum condition, which is the necessary condition of the private right development.
1.2.3.The privately owned proprietary and personality rights system
The property right is the guarantee basic and the material condition of the personality rights. In the first place, a property right is the exclusive authority to determine how a resource is used, whether that resource is owned by government or by individuals. In the second place, depending on the nature of the property, an owner of property has the right to consume, sell, rent, mortgage, transfer, exchange or destroy it, or to exclude others from doing these things. In the last place, the right of publicity can be defined simply as the right of an individual to control the commercial use of his or her name, image, likeness or other unequivocal aspects of one"s identity.
2.The History and Current Situation of the Protection of Private Property Rights in our Country
After the foundation of People’s Republic of China, our country started to follow Soviet Union in the law field. There is no complete property and unlimited freedom. The private economic activity of human beings can only be conducted under the guidance of the country or under certain limitations. Under this circumstance, there are no private laws and the privately owned proprietary of human beings has no basis of existence.
From 50th to 8oth century, part of people failed to distinguish the relationship between ownership and ownership system from the perspective of theory.
In the end of the 80th in the 20 century, the ownership system has some changes. Article 9 requires that creation, transfer, and destruction of immovable property rights require registration to be effective. The law covers all of the three property types within the People"s Republic of China, which are state, collective, and private which are defined in Chapter 5 of the law. Chapter 4, Article 40 of the law divides property rights into three types: ownership rights, use rights, and security rights. The law goes into detail about the legal rights associated with any of these three types. The law does not change the system of land tenure by which the state owns all land. However, in formalizing existing practice, individuals can possess a land-use right, which is defined in Chapter 10 of the law. The law defines this land-use right in terms of the civil law concept of usufruct.
The Property Law of the People"s Republic of China is a property law adopted by the National People"s Congress. The law covers the creation, transfer, and ownership of property in the mainland of the People"s Republic of China and is part of an ongoing effort by the People"s Republic of China to gradually develop a civil code. In developing civil law in the People"s Republic of China mainland, the People"s Republic of China government has used the German Pandectist system of classification under which the property law corresponds to the law on real rights, which is the term used in Chinese for the official name of the law.
3.The Value of the Privately Owned Proprietary and the Civil Law
3.1.The ethical values of the privately owned proprietary and civil law
3.1.1.The privately owned proprietary and equality
Equality under the law or legal egalitarianism is the principle under which each individual is subject to the same law. Equality is the core value and the principal principle of civil law.
Equality on private property involves two senses: the equality on opportunities and the equality on distribution. The essence of the equality of opportunity is a stipulation that all people should be treated similarly, unhampered by artificial barriers or prejudices or preferences, except when particular “distinctions can be explicitly justified. Equal opportunity, or equality of opportunity, is a controversial decision-making standard without a precise definition involving fair choices within the public sphere. Social equality is a social state of affairs in which all people within a specific society or isolated group have the same status in a certain respect.
3.1.2.The privately owned proprietary and freedom
Bernard ? Schwartz once said, “Property is the manifestation of freedom”. Leonard Trelawny Hobhouse was a British liberal politician and sociologist, who has been considered one of the leading and earliest proponents of social liberalism. His work also presents a positive vision of liberalism in which the purpose of liberty is to enable individuals to develop, not solely that freedom is good in itself. Hobhouse, by contrast, said that coercion should be avoided not because we have no regard for other peoples" well-being, but because coercion is ineffective at improving their lot. Georg Wilhelm Friedrich Hegel was a German philosopher, one of the creators of German Idealism. His historicist and idealist account of reality as a whole revolutionized European philosophy and was an important precursor to Continental philosophy and Marxism. He regards freedom or self-determination both as real and as having important ontological implications, for soul or mind or divinity. All three find common ground on the unique position of humans in the scheme of things, known by the discussed categorical differences from animals and inanimate objects. The philosophers have made explorations on the relationship between the privately owned proprietary and freedom.
Liberty needs foundation. The privately owned proprietary is the exterior manifestation of freedom. Liberty is a moral and political principle that identifies the condition in which human beings are able to govern themselves, to behave according to their own free will, and take responsibility for their actions. There are different conceptions of liberty, which articulate the relationship of individuals to society in different ways, including some which relate to life under a social contract or to existence in a state of nature, and some which see the active exercise of freedom and rights as essential to liberty.
3.2.The economic values of the privately owned proprietary and civil law
In the first place, With the combination of the case study of passive adjustment of private colleges property right and from the perspective of new institutional economics, it analyzes the necessity and urgency of the adjustment of private colleges and universities and proves that it is factually a low efficient institutional arrangement for only school-runners having control rights in this private colleges and universities. In the second place, some districts also say they fear that they won’t be able to regulate groundwater if the landowner has a vested right. They seem to believe that vested rights are some sort of super property rights―that if it is restricted, then the landowner must be compensated. It is very troubling if districts believe this. It makes one wonder if these local districts have the knowledge and ability to exercise the extensive regulatory authority given to them by the legislature.
Private property right has a great deal of advantages compared to the state property right system. There are following points that should be mentioned.
3.2.1.The motivation role of private property rights
Private Property is the right of persons and firms to obtain, own, control, employ, dispose of, and bequeath land, capital, and other forms of property. Private property is distinguishable from public property, which refers to assets owned by a state, community or government rather than by individuals or a business entity. In political and economic theory, the distinction between private property in personal goods and private property in the means of production is important. In general, personal property is part of your person and includes property from which you have the right to exclude others.
3.2.2.The reasonable collocation of resources
From the socialist perspective, private property refers to capital or means of production that is owned by a business or few individuals and operated for their profit. Personal property refers to tangible items and possessions individuals own, such as consumer goods.
3.2.3.Save the transition costs
From the Marxist perspective, private property is a social relationship, not a relationship between person and thing. In capitalism there is little distinction between personal and private property.
4.The Protection of Private Property Rights under the Property Law in our Country
The socialist market economy or socialist market economy with Chinese characteristics is the official term used to refer to the economic system of the People"s Republic of China after the reforms of Deng Xiaoping. Under this circumstance, how to strengthen the protection of private property has been the principal matter that should be solved for the law process of property law. They are shown specifically in the following aspects：
1)“Ownership” and “property right”. Ownership is the state or fact of exclusive rights and control over property, which may be an object, land/real estate or intellectual property. Ownership involves multiple rights, collectively referred to as title, which may be separated and held by different parties. Therefore, the “property law” has stipulated the legal ownership of people of the country.
2)The legality of the property rights and the attribute to human rights. Most of the economic growth in China is attributed to the private sector, which grows at twice the official rate of increase and is continually expanding. However, the size of the private sector is notoriously difficult to pin down as the private sector is likely underestimated by state officials in calculation of GDP because of its propensity to ignore small entrepreneurs and private enterprises being not registered. The state sector is concentrated in the "commanding heights" of the economy with a growing private sector engaged primarily in commodity production and light industry. Centralized directive planning based on mandatory output requirements and production quotas has been superseded by the free-market mechanism for most of the economy and directive planning in large state industries.
3)Life material and production material protection. Property law is the area of law that governs the various forms of ownership in real property and in personal property, within the common law legal system. In the civil law system, there is a division between movable and immovable property.
4)The private property insurance of citizens is not sufficient. The abuse use of the rights of the government is the strongest power that overcomes the private property.
It is a principal task of the tort law to protect the private rights. In addition, learn the successful experiences from the common law system and combine the advantages of theirs so as to become the trend of the legislation currently.
5.References
[1] He Xin-quan. Research on Hayek"s theory of freedom. Beijing: Peking University Press，2004.
[2]Zhou Lin-bin. New theory on the property law- a kind of views on legal economic analysis. Beijing: Peking University Press，2000.
[3]SUN Xian-zhong.the propertiy law should adopt the principle of “equal protection”. Legal science.2006 (4).
[4]WANG Xie. The historical transmission of the property right guaranteed by constitution under the new China（1949―2004）.China court.2006 (1).