The real right method
Table of contents
The real right method is included in a French Civil Code (1804 establishment) in France. It is included in a Spanish new Civil Code (the 1889 promulgation) in Montenegrin property law (the 1888 promulgation) in Spain in Montenegro. It is included in Civil Code (BGB) (1900 -) in Germany. Civil law (1896) second becomes the general law of the real right method in Japan.
In Japan, civil law second is the general law of the real right method. In addition, I often call a subject to teach mainly on an interpretation theory of the civil law second from this "the real right method" (the real right method of the narrow sense).
On the other hand, other than civil law, I may point to the thing including to the thing that a precedent recognized a thing established by a customary law including the thing and hot spring right prescribed by the Mines Act, a special law including the Fisheries Act and call this with the real right method of the wide sense. Particularly, the mortgage that is an example of the approved real right plays an important role in modern economic activities by a precedent, and the jurisprudence comprised by the case law occupies the position that is not inferior to a Civil Code.
Comparison with the credit
The real right means a right to influence a thing exclusively directly (effect of the anti-world) and can prescribe right relations based on the contracts of the personal interval like credit freely, but the thing prescribing legally including 10 rights prescribed by civil law is demanded from the effect to be a very strong right, and to recognize it unlike (interpersonal effect) that is inferior only to an opponent. In addition, real right is not established separately from the whole of the thing for a part of the thing, and it is said to plural things that one real right does not need to be established. Such a way of thinking called "one-object-one-owner principle" .
The plural credit setting for the purpose of the equivalent is possible (if each contract in itself carries one out not a thing becoming invalid, the stellionate cannot carry out another an example, and credit legal solution is planned), but it is necessary to solve this unless plural setting is accepted for the purpose of an equivalent as for the credit by "principle (principle of the private autonomy) of the contract freedom" and violate public order and morals, the enforcement law because those superiority and inferiority is the problems that should be solved exclusively by the relations between contractants by the default on an obligation because plural proprietary rights about the thing which, for example, there is existed, and the setting of the real right will be against the essence of the right called the exclusive rule in proprietary rights. When one of these methods is a public announcement, and there are plural people insisting on real right about an equivalent, thus, the opposition relations will be solved after presence, the point of the public announcement.
Because the right characteristics of the real right express it by a procedure of the credit to be identified as civil law Article 175 from a rule of Article 176 to continue, I am supplemented, and the relativization is done again by a property of the credit. For example, a real right change theory in the real estate can see this. The buyer plans absoluteness called the exclusive control by a quitclaim, but the plan stands opposite to possibility, and it is become by a right multiplex transfer of the seller.
Legal real right
There is ten kinds of real right prescribed by civil law.
It is a right admitted that I have special positioning soon for a state to influence a thing regardless of a legal cause namely the right of possession.
Other real right is named a real right, and there are proprietary rights, usufructuary right, rights of the mortgagee. The proprietary rights can set all real right for the thing concerned (including the transfer of proprietary rights in itself), and they are the rights that can let the thing concerned lose again. The usufructuary right has superficies, servitude, permanent tenant rights, four of the common. The rights of the mortgagee have mortgage (including the fixed collateral right), a right of pledge, a preferential right, a lien.
Above-mentioned ten do not depend on laws and ordinances in legal real right (but including the customary law), and there is not the thing that general effect is recognized in the place that agreed creating the real right except this. For example, I cannot insist on the fruit collection right for the person regardless of the good will malice of the new owner when I set a right (I name it the fruit collection right tentatively) to gather only fruit for a certain fruit tree (Tachiki), and the owner of the fruit tree changes it even if I gave 明認方法 for a third party.
- Akira Yamada "German real right method general statement" Hirofumi temple, 1949
This article is taken from the Japanese Wikipedia The real right method
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