Article 1 This Law is formulated in accordance with the Constitution in order to safeguard the basic economic system of the country, maintain the order of the socialist market economy, clarify the ownership of things, give full play to the utility of things, and protect the property rights of obligees.
● The main idea of the article
This article is about the purpose and basis of legislation.
● Legislative background
According to the requirements of reform and opening up, China's general principles of civil law, land management law, urban real estate management law, guarantee law, rural land contract law and other laws have made many provisions on property rights, which have played an important role in economic and social development. But these regulations are not enough today. In order to adapt to the in-depth development of reform and opening up and socialist modernization, and to meet the requirements of building a harmonious socialist society, we should not only have a relatively complete property circulation system, but also have a relatively complete property ownership and use right system. Otherwise, many people's property-related behaviors in social life will be at a loss, and many property-related disputes in trial practice will be out of the question. Therefore, it is necessary to formulate the property right law according to the Constitution and on the basis of summing up practical experience, and make provisions on the related issues of the property right system and the problems that need to be standardized urgently in real life, so as to further clarify the ownership of property, give full play to the utility of property, protect the property right of the obligee and improve the property right system in Socialism with Chinese characteristics.
The drafting of property law began at 1993. From June 5th to February, 2002, the Ninth the National People's Congress Standing Committee (NPCSC) deliberated the draft property law for the first time. The 10th the National People's Congress Standing Committee (NPCSC) attached great importance to the formulation of property law, spent a lot of energy, did a lot of work and deliberated for six times. In order to make this law, the National People's Congress Standing Committee (NPCSC) insists on democratic and scientific legislation. In July 2005, the full text of the draft property law was announced to the public, and * * * received more than 0/000 opinions from the people, held more than 0/000 symposiums, held many demonstration meetings, and conducted special investigations in some places to fully listen to the opinions of some NPC deputies, grassroots people, experts and scholars and relevant departments of the central government. In the process of revising and perfecting the draft property law, we always adhere to the correct political direction, adhere to the China characteristics of the property law, proceed from reality and absorb reasonable opinions and suggestions from all sides. After repeated deliberation by the Standing Committee, the draft property law was submitted to the General Assembly for deliberation, which was carefully considered at the Fifth Session of the Tenth National People's Congress, and the People's Republic of China (PRC) Property Law was passed on March 16, 2006.
● Interpretation of the terms
Law belongs to the superstructure, which is determined by and serves the economic base. China's economic system is based on socialist public ownership of the means of production. In the primary stage of socialism, we adhere to the basic economic system with public ownership as the main body and multiple ownership economies developing together. This basic economic system determines the socialist nature of China's property law. Property right includes ownership, usufructuary right and security right. The ownership, scope and content of real right are closely related to China's basic economic system. If we do not reflect or embody China's basic economic system, it is impossible to formulate a property law with China characteristics that conforms to China's national conditions. Therefore, the property law must embody China's basic economic system and take the maintenance of China's basic economic system as its fundamental purpose, so this article clearly regards the maintenance of the national basic economic system as one of the legislative purposes. Property law mainly reflects and maintains China's basic economic system from a civil perspective by clarifying the ownership of things, what rights the obligee has, what obligations others have, and the legal responsibility for infringing property rights.
Civil law is a law to adjust the relationship between equal subjects, which is gradually improved with the development of market economy. Since the reform and opening up, China has implemented a socialist market economy. For the development of the socialist market economy, the central government's policy is clear, that is, to establish a market economic system, use market means, give play to the role of economic laws, rationally allocate resources, give full play to the maximum benefits of human and material resources, develop productive forces, promote economic prosperity, improve living standards and enhance comprehensive national strength through fair competition among market players. To develop the market economy, we must establish a legal system that is compatible with the socialist market economy, and the basic law to adjust the relationship between the market economy is the civil law. Property law, as an important part of civil law, is the basic rule for establishing the ownership and use of property rights, standardizing the property relations of market subjects due to the ownership and use of things, safeguarding the rights of market subjects, maintaining the market economic order and serving China's socialist market economy. Therefore, maintaining the socialist market order is one of the legislative purposes of the property law.
The most direct purpose of making property law is to clarify the ownership of things and give full play to their effectiveness. This is closely related to the role of property law. The function of property law is mainly embodied in two aspects:
1. Stop arguing separately. Shang Yang said in Shang Jun: "A rabbit ran away, and a hundred people drove it away. If you don't treat it as a rabbit, you can think it is a hundred. It doesn't decide your birthright. Your husband sells rabbits all over the city, and thieves dare not take them. If you decide your birthright, you cannot decide your name. Yao, Shun, Yu and Tang ran together. Your birthright has been decided, but the poor and thieves can't take it away. " It often happens in life that a landlord sells his house to A for use. Later, because of the price, acquaintances and other reasons, the house was sold to B, and the house was transferred with B. Who owned the house? B can you ask a to vacate the house? There are many ways to solve the problem of selling one thing and two things, such as determining the ownership of the house according to the order in which the contract is concluded, determining the ownership of the house according to whether there is payment or not, and determining the ownership of the house according to whether the buyer actually occupies the house. Another way is to determine the ownership of the house according to whether the house has gone through the transfer registration procedures. All the above solutions have some truth. Without property law, different people have different views. With the property law, the property law stipulates who is the owner of the house from the perspective of maintaining economic order and market transaction safety. First, it is necessary to check whether the house has gone through the transfer registration procedures. If so,
After the transfer registration, the person registered in the real estate register is the owner of the house. Although A bought it first, it didn't go through the transfer formalities. Although B was bought later, it has gone through the transfer formalities. The owner of the real estate register is B. Therefore, B has the right to ask A to vacate the house. Although Party A has not gone through the transfer formalities, the house sales contract concluded between Party A and the original owner is valid, and Party A can claim compensation from the original owner according to the contract. Therefore, relying on the rules determined by the property law, we can clarify ownership, divide disputes and stabilize economic order.
2. Make the best use of everything. Things can be used by themselves, or given to others, and can be transferred to people with more business skills according to law. Property law leaves a lot of room for the obligee to make full use of property. The Property Law not only stipulates the owner's right to possess, use and benefit from the property, but also stipulates other people's right to use the property, such as usufructuary right and security right. At the same time, from the perspective of rational use of resources and safeguarding public interests, there are also many restrictions on the rights of obligees, such as the provisions of the property law on strict protection of cultivated land, the provisions of adjacent relations, and the provisions on expropriation and requisition. The purpose of enacting the property law is to give full play to the legal division of property rights and make the best use of everything, create a good legal environment for the obligee to make full use of property, and encourage the obligee to create and accumulate wealth. Make "those who have constant production have perseverance". Ensure living and working in peace and contentment, and promote economic development and social progress. Therefore, the property law aims at clarifying the ownership and utility of things.
Protecting creditors' property rights is one of the purposes of property law. This is mainly reflected in: first, through a series of rules to determine the ownership of property rights, clear who the property rights belong to; second, through the provisions of the methods and methods of property rights protection, the obligee whose property rights have been infringed can protect his legal rights. Third, by regulating the scope and exercise of state-owned assets, prevent the loss of state-owned assets and strengthen the protection of state-owned assets; Protect the collective property in rural areas and towns by stipulating the scope and exercise of collective property; Protect the legal property owned by private people by stipulating private ownership and different ownership of buildings by owners; By stipulating usufructuary rights and security rights such as land contractual management rights and homestead use rights, the right to use the property of the obligee is protected. In a word, one of the purposes of formulating the property law is to effectively protect the property rights of obligees, safeguard the vital interests of the broad masses of people, stimulate people's vitality in creating wealth and promote social harmony.
Constitution is the fundamental law and parent law of the country, and other laws are derived from it. The Constitution stipulates major policies, and other laws must embody the spirit of the Constitution and must not contradict it. Therefore, the property law must embody the spirit of the Constitution. The property law takes the basic economic system stipulated by the Constitution as its legislative purpose, the basic economic system and the implementation of the socialist market economy as its basic principles, and implements the spirit of protecting public and private property stipulated by the Constitution in the specific provisions for protecting state-owned assets, collective property and private legal property. The provisions of the Property Law embody the spirit of the Constitution.
Article 2 This Law shall apply to civil relations arising from the ownership and use right of things.
The things mentioned in this law include real estate and movable property. Where the law stipulates that the right is the object of real right, such provisions shall prevail.
The term "real right" as mentioned in this Law means that the obligee enjoys direct control and exclusive rights over specific things according to law, including ownership, usufructuary right and security right.
● The main idea of the article
This article is about the provisions of the scope of property law.
● Interpretation of the terms
The first paragraph of this article stipulates the social relationship of property law adjustment, that is, the adjustment scope of property law. The ownership of things refers to who is the owner of things and who is the owner of things. Determining the ownership of things is to determine who the property right belongs to in civil, which is the premise of using things. To adjust the ownership relationship of things, the property law must determine the principle of ownership, which is an important content of the property law. Whether the owner uses his own property or gives it to others, it is the use of property. The use of things is the purpose of our possession. Property law regulates the relationship arising from the use of things and determines the rules for the use of things, which is also an important content of property law. Property law is applicable to civil relations arising from the ownership and use right of things. What needs to be clear is that the property law generally does not adjust the ownership and utilization relationship of all things, but only adjusts the property relationship between equal subjects arising from the ownership and utilization of things, that is, the "civil relationship" as stipulated in the first paragraph of this article. According to the division of legal departments, property law belongs to civil law, which adjusts horizontal social relations; The vertical relationship between the manager and the managed person in economic and social management activities also involves the ownership and use right of property, but this relationship is mainly adjusted by administrative law and economic law, which is not within the scope of property law adjustment.
The things stipulated in the Property Law include real estate and chattel, and real estate refers to land, houses, trees and other fixed things on land; Movable property refers to things other than real estate, such as cars and televisions. Real estate and movable property are the classification of things in property law. The reason for this classification is mainly to facilitate the standardization of real estate and movable property according to their respective characteristics. Things in property law are usually tangible or tangible, which refers to physical things, including solids, liquids, gases, electricity and so on. The so-called tangible things or tangible things are mainly relative to spiritual products. Works, trademarks, patents, etc. Are spiritual products, intangible or intangible. Spiritual products are not regulated by property law, but mainly regulated by special laws such as copyright law, trademark law and patent law. Everything in the world, not all tangible things or tangible things are the objects of property law adjustment. What the Property Law can adjust must also be something that human beings can control and have use value. With the development of science and technology, some things that could not be controlled and utilized can also be controlled and utilized, which is also included in the adjustment scope of the property law, and the scope of things adjusted by the property law is also expanding.
Spiritual products do not belong to the adjustment scope of property law, but in some cases, property law also involves these spiritual products, which mainly means that property rights in copyright, trademark right and patent right can be used as the subject matter of security property rights. Article 223 of the Property Law stipulates that Cai 6' s property rights in the transferable intellectual property rights such as the exclusive right to use registered trademarks, patents and copyrights can be pledged as rights. In this special case, right has also become the object of real right. Therefore, in the second paragraph of this article, if the law stipulates that the right is the object of real right, its provisions shall prevail.
Property right is a kind of property right, and it is the right of the obligee to directly control certain things and exclude others' interference within the scope stipulated by law. Because property right is the right to directly control things, it is also called "absolute right"; The obligee of the real right enjoys the real right, and no one else may illegally interfere. The obligor of real right is anyone other than the owner of real right, so real right is also called "the right to the world". In the nature of rights, property rights are different from creditor's rights. The rights and obligations of creditor's rights are limited to the parties to the contract, for example, the rights and obligations of the contract are limited to the parties to the contract. Creditor's right is the right of the creditor to ask the debtor to act or not to act, not to ask someone who has nothing to do with the relationship between creditor's right and debt. For this reason, creditor's rights are called "human rights" and "relative rights". Property right includes ownership, usufructuary right and security right. Ownership means that the obligee has complete control over his own property according to law. Usufructuary right refers to the right to use and benefit other people's property according to law, such as rural land contractual management right and construction land use right. Real right for security refers to the real right established to ensure the performance of debts. When the debtor fails to perform the debt, the creditor has the right to be paid in priority for the value of collateral such as mortgage, pledge and lien according to law.
In addition, there are two related issues to explain:
1. Relations and differences among "real right", "property right" and "property ownership". The name of this law is Property Law. Some people think that "property right" is not easy to understand, and "property right" is easy to understand. It is suggested that the legal name be changed to "Property Law" or "Property Ownership Law". What should be explained here is that property rights are broader than property rights, including not only property rights, but also creditor's rights, intellectual property rights and inheritance rights. Creditor's rights are mainly regulated by contract law, intellectual property rights are mainly regulated by trademark law, patent law and copyright law, and inheritance rights are mainly regulated by inheritance law. At the same time, the term "property ownership" is narrower than "property right" only in terms of ownership. Property right includes not only ownership, but also usufructuary right and security right, and the latter two rights are also relatively independent property rights. Therefore, the name of this law should not be called "property law" or "property ownership law", but it is more accurate to adopt "property law"
2. About the subject of real right. Paragraph 3 of this article and Article 1 describe the subject of real right as "obligee". In the process of legislation, there are different opinions on how to express the subject of real right, and some suggestions are defined as "natural person and legal person"; Some suggestions are defined as "natural persons, legal persons and other organizations"; Some suggestions are defined as "state, collective and private"; Some suggestions are defined as "state, citizens, legal persons and other organizations"; Some people think that the state, as the subject of real right, can be incorporated into legal persons; Some people think that the use of "obligee" can include all kinds of real right subjects, which is appropriate and does not need to be changed. The above viewpoints have their own reasons. The current relevant laws and administrative regulations have solved this problem. The rules of divination are also inconsistent. There are basically two kinds of expressions of the subject of real right in this law. One is unified expression as "obligee", as stipulated in Article L: "Protect the property right of obligee." The "obligee" specified in Chapter II and Chapter III. Second, according to the relevant chapters and specific provisions, it is expressed as the state, collective, private, units, individuals, enterprise legal persons, legal persons other than enterprise legal persons, individual industrial and commercial households, agricultural producers and operators, etc. In real life, countries, collectives, natural persons and legal persons are all subjects of real right. However, when formulating the provisions on civil subjects in the General Principles of Civil Law, we can study whether they are classified into two types of subjects, three types of subjects or four types of subjects. The expression of the subject of real right in this law conforms to the needs of real life and does not affect the unified provisions on civil subjects when formulating the general principles of civil law in the future.
Article 3 In the primary stage of socialism, the state adheres to the basic economic system in which public ownership is the mainstay and various forms of ownership develop together.
The state consolidates and develops the public sector of the economy, and encourages, supports and guides the development of the non-public sector of the economy.
The state practices a socialist market economy and guarantees the equal legal status and development rights of all market participants.
● The main idea of the article
This article is about China's basic economic system and the principles of socialist market economy.
● Interpretation of the terms
In the process of legislation, some people think that China is a socialist country and the state-owned economy is the leading force in the national economy, so China's property law should highlight the protection of public ownership. Some people think that property law belongs to private law and should emphasize the protection of private property. We believe that China is a socialist country, in the primary stage of socialism, and implements a basic economic system with public ownership as the main body and multiple ownership economies developing together. Socialism with Chinese characteristics's property right system is determined by the socialist basic economic system, which is essentially different from the capitalist property right system. As a property law reflecting China's socialist relations of production and maintaining the socialist economic system, it must comprehensively and accurately reflect China's current socialist basic economic system and embody the firm spirit of "we must unswervingly consolidate and develop the public sector of the economy" and "we must unswervingly encourage, support and guide the development of the non-public sector of the economy" put forward by the 16th National Congress of the Communist Party of China. Therefore, the property law regards the socialist basic economic system stipulated in the Constitution and the two "steadfastness" put forward by the 16th National Congress of the Communist Party of China as the basic principles of the property law, and as the core of the property law, it runs through and is embodied in the whole property law.
The implementation of socialist market economy is closely related to China's basic economic system. Developing the socialist market economy is an inevitable requirement for upholding and perfecting the basic socialist economic system. We must adhere to the principle of public ownership as the main body and the common development of diversified ownership economies. To consolidate and develop the public sector of the economy and encourage, support and guide the development of the non-public sector of the economy, we must implement the socialist market economy. Before the reform and opening up, China implemented a planned economy based on public ownership, and the production process and the distribution of production materials were mainly completed by planning and allocation. Ownership is relatively simple, and there are only two forms of ownership by the whole people and collective ownership. Although there is a small-scale consumer market, it is not a large market for means of production, so it is not a market economy, but a planned economy. Since the reform and opening up, a basic economic system with public ownership as the main body and multiple ownership economies developing together has been implemented. With the development of multi-ownership economy, it is necessary to adopt the corresponding market economic system. Only in the market economy can the multi-ownership economy develop together. Market economy is a civilized achievement of economic development created by human beings, which can give full play to the enthusiasm of producers, rationally allocate resources, create efficient economic benefits and promote economic prosperity. Therefore, the Constitution stipulates that the country practices a socialist market economy. The most important thing to implement the socialist market economy is to ensure the equal status and development rights of market subjects, which is the premise of implementing the market economy. As a property law that regulates the property relations between equal subjects due to the ownership and use right of things, the equal legal status of the subjects of property relations is the premise of the existence of equal property relations regulated by property law, and also the premise of the existence of property law and even civil law. There is no civil law without equal relations, and there is no property law without equal property relations. Therefore, the property law regards the implementation of the socialist market economy and the protection of the equal legal status and development rights of all market subjects as its basic principles.
Article 4 State, collective and private property rights and the property rights of other obligees are protected by law, and no unit or individual may infringe upon them.
● The main idea of the article
This article is about the principle of equal protection of state, collective and private property rights.
● Legislative background
Traditional civil law does not stipulate equal protection of property rights as an independent principle. 10 because the civil law regulates the property relationship and personal relationship between equal subjects, equal protection is the proper meaning of the civil law, and it is not necessary to stipulate it as a separate principle. China is a socialist country, with the public ownership economy as the main body, the state-owned economy as the leading force of the national economy, and various ownership economies have different positions in the national economy. Maintaining the dominant position of the public-owned economy and maintaining the leading role of the state-owned economy are clearly stipulated in economic law, administrative law and criminal law. At the same time, China's socialist market economy requires that market subjects have equal legal status and development rights, and the relationship between market subjects is equal. Property law regulates the property relations between equal subjects, mainly the market economy relations. It is necessary to clearly stipulate the principle of equal protection of property rights in property law.
● Interpretation of the terms
Civil law is a law to adjust the property relations and personal relations between equal subjects. As an important part of civil law, property law is a law to adjust the property relationship between equal subjects due to the return and utilization of things. The equal protection of property rights of all civil subjects by property law is determined by the nature of social relations adjusted by civil law. As for the principle of equality in civil law, the General Principles of Civil Law has clearly stipulated that civil law regulates the property relations and personal relations between citizens, legal persons and citizens and legal persons as equal subjects. The parties have equal status in civil activities. Civil activities should follow the principles of voluntariness, fairness, equal compensation, honesty and credibility. Therefore, this article stipulates the principle of equal protection of state, collective and private property rights.
The Constitution stipulates: "The state practices a socialist market economy." Fair competition, equal protection and survival of the fittest are the basic laws of market economy. Under the condition of socialist market economy, all kinds of market subjects formed by various ownership economies operate in a unified market and are interrelated. All market players have equal status, enjoy the same rights, abide by the same rules and bear the same responsibilities. Marx said, "Commodities are born equal". If all kinds of market subjects are not equally protected, and the ways of resolving disputes and the legal responsibilities they bear are different, it is impossible to develop the socialist market economy and to uphold and improve the basic socialist economic system. In order to meet the requirements of the development of the socialist market economy, the Third Plenary Session of the 16th CPC Central Committee further clarified that "the equal legal status and development rights of all kinds of market subjects should be guaranteed". Even if the property does not enter the market, the constitution clearly stipulates that citizens' legitimate private property is inviolable. "The state protects citizens' private property rights and inheritance rights according to law. "Under the premise of determining property ownership according to law, as the subject of property rights, both state and collective property rights and private property rights should be equally protected. Otherwise, the property rights of different rights holders are equally infringed, and the state and the collective should pay more, and the private can pay less. This will certainly damage the enthusiasm of the masses to create and accumulate wealth according to law, which is not conducive to people's prosperity and social harmony. It should be noted that equal protection does not mean that different ownership economies have the same position and role in the national economy. According to the Constitution, public ownership economy is the main body, state-owned economy is the leading force, and non-public ownership economy is an important part of socialist market economy. Their position and role in the national economy are different. This is mainly reflected in national macro-control, public resource allocation, market access and so on. It is clearly stipulated in the economic law and the administrative law to ensure the control of the state-owned economy in important industries and key areas related to national security and the lifeline of the national economy.
Also need to explain. This article stipulates "the real right of other rights", because it stipulates the principle of equal protection for the classification of the subject of real right from the perspective of ownership, and there are still rights holders who cannot be completely included in "state", "collective" and "private", such as public welfare foundations. Therefore, "other obligee" is defined.