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Although civil rights are guaranteed by power, they are a colorless and abstract concept, which exists in people's consciousness, not in things. Its essence is a kind of will power protected by law, which can be attached to things, such as property rights, but things themselves are not rights; It can also be independent of things, such as creditor's rights and intellectual property rights. Hegel once said with emotion: "such as spiritual skills, scientific knowledge, art and invention." , can be the object of the contract, and are regarded as the same as those admitted in business. Although this kind of possession can be traded and concluded as a thing, it is also an internal spiritual thing. " Therefore, as long as the substantive property right is persistent on the axis of time (not space) and as valuable as things, it can be used as the object of transaction and not necessarily attached to things. Therefore, the concept of intangible in French law is a failure, and the design of the concept of quasi-real right is redundant, which only increases the difficulty of understanding. Because things are a concept of life, in the legal world, people exchange rights first, not things first, although the main purpose of rights exchange is the realization of things or the acquisition of personality.
Mr. Sotaro, a famous Japanese civil jurist, divided the civil rights system into substantive rights and technical rights, the former such as personality rights, property rights, creditor's rights, equity rights and intellectual property rights, and the latter such as claim rights, formation rights and defense rights. In addition to control and claim, substantive rights can also be divided into means rights and purpose rights. The former, such as creditor's rights, stock rights and intellectual property rights, while the latter, such as personality rights, identity rights and property rights, all serve the perfection of personality.
1, the effectiveness of creditor's rights in the realization of personality. The creditor's rights arise because the payment of the subject matter of the debt and the payment of the consideration are not synchronized in the time dimension. For example, the purchase of commercial housing by stages, commercial housing has been delivered but the price has to be paid for a long time. As a compulsory transaction, tort debt, negotiorum gestio debt and unjust enrichment debt have the same causes. The appearance of creditor's rights breaks through the transaction barrier that the debtor temporarily fails to pay the consideration, which ensures the debtor to make full use of time resources and greatly promotes the prosperity of the transaction. But the realization of creditor's rights must rely on the morality, strength and various objective conditions of the other party. Compared with the dominant position, the security is greatly reduced, and creditors often strive to realize their claims.
The content of debt is action or omission, and the purpose of action and omission is nothing more than the realization of property right, the acquisition of personality or some kind of interest in fact. As mentioned above, the purpose of buying commercial housing is to dominate: live, mortgage or resell. When we go to the cinema with the debt certificate-movie tickets, we get spiritual pleasure and shock by accepting the performance-screening behavior of the cinema debt, and our personality is enriched.
2. The effectiveness of fairness in the realization of personality. Equity is to eliminate the psychological barriers of shareholders and stimulate their investment. Equity greatly improves the company's financing ability, further improves the company's organizational ability in producing and selling things and their services, and provides the necessary elements for services that promote personality gain. The movement of "from identity to contract" revealed by Sir Maine is inseparable from the powerful driving force generated by the mutual cooperation of equity. In the identity society, people's means of production are mainly land. If they conquer the land, they conquer everything. The grade difference between people depends on the strength of the land conquered by individuals. Obviously, this kind of conquest can only be mental violence and physical violence-the so-called "literary kung fu". In industrial society, production no longer depends solely on land. Under the operation of equity and creditor's rights, the production capacity and exchange capacity of this non-land production mode have been greatly improved. The great sensory and psychological stimulation brought by the diversity and functionality of things has diverted the attention of the whole society. Everyone wants to join this production exchange relationship. The basic requirement of the exchange of things is equivalent exchange, and the whole transaction cycle will be unsustainable unless one party exerts power on the other. In this way, wave after wave of wealth creation gradually destroyed and disintegrated the identity system and promoted the formal equality of personal status. The control relationship between people has developed from physical and mental control to economic control. If we simply say that this kind of economic control is a simplified form of things-the control of money is obviously inaccurate, because money can only be active when it is converted into equity and creditor's rights, and more things and more services can be guaranteed. Therefore, we can't deny that in today's world, the conquest of equity and creditor's rights has overwhelmed the conquest of force and spirit.
My wife Rong lamented that "creditor's rights (including equity and creditor's rights in a broad sense) overwhelm property rights" just to emphasize the powerful function of creditor's rights in today's world, but the purpose of creditor's rights-the realization of property rights and the acquisition of personality-can't be denied by anyone: a dazzling array of goods and bustling cities are all formed under the impetus of creditor's rights.
3. The effectiveness of intellectual property in the realization of personality. Intellectual property is a kind of hidden property. Our life has long been inseparable from intellectual property rights, such as the shape of buildings, brands of cars and bicycles, branded clothes, spices and oil, salt, sauce and vinegar, colorful novels, movies, TV series, refrigerators, washing machines, pop songs, game software and so on, all of which have their unique functions.
Intellectual property has three functions: the acquisition of personality, the appreciation of things, and the improvement of the production and exchange ability of things. Everyone has a desire to express himself. Writing (papers, novels, essays, poems, scripts, software, etc. Making a speech is for self-entertainment, fame and fortune, or self-realization, which is nothing more than gaining personality and earning profits. If a book doesn't contain words to express ideas, it is just a pile of worthless paper. But if you enrich it with profound thoughts, touching plots and beautiful words, the stack of papers will be worth a hundred times immediately. Television is useless if there is only television without programs (intellectual property rights). Only when you receive the program can TV play its role. For another example, if there is no gain in intellectual property rights for bicycles, it is impossible to have baby carriages, tricycles, elderly cars, electric cars and other varieties to meet the needs of all kinds of people. It can be seen that the main mission of copyright and patent right is to gain individuality by spreading ideas, or to materialize and add value to things. The function of trademark right is to attach to things and show their characteristics. In this way, people can quickly distinguish the quality of similar things, thus avoiding the cost of purchasing the required items, reducing transaction costs and improving transaction efficiency.
It is precisely because intellectual property can greatly increase personality and strengthen the function of things that intellectual monopoly has become a new conquering force besides equity and creditor's rights. Coca-Cola Beverage Company is popular all over the world only by relying on the technical formula of Coca-Cola. As a famous entrepreneur said, even if the company's tangible assets are reduced to ashes overnight, as long as the technical formula is not made public, the company can still rise rapidly. Microsoft has grown rapidly with its unique software and hardware, and has long dominated the world.
Summary:
As can be seen from the above, the mission of equity, creditor's rights and intellectual property rights is to realize the production, exchange and appreciation of things, and then obtain personality from the consumption of things. And these three rights are often attached to things to show their functions, because people can only make a difference by relying on things. Therefore, equity, creditor's rights, intellectual property rights and other rights can be collectively called "realization rights" so as to correspond to property rights and personality rights. Although the conservative German Civil Code divides real right into real right and creditor's right, which is of great significance, it hinders the agility of civil life. Because there is no integration of equity, creditor's rights and intellectual property rights, it is impossible to reflect the whole civil life smoothly and systematically: the movement of equity, creditor's rights and intellectual property rights constantly strengthens the function of things, through which people constantly acquire personality and develop creative talents, and then people create more powerful things through equity, creditor's rights and intellectual property rights, and human civilization advances rapidly.
The German Civil Code is a summary and perfection of ancient Roman law. Although the basic framework of ancient Roman law embodies considerable historical constancy, it cannot solve all civil law problems due to the rapid changes of the times. In ancient Rome, it was impossible to have such developed equity and intellectual property rights, so there was no legal technology to integrate equity and intellectual property rights. Humans need to constantly absorb real life with Roman legal thinking methods that transcend time and space, and should not stay in worship and admiration and forget to move forward. The wisdom of civil law in continental law system lies in using "handles" to classify real life, and we need to constantly look for "handles" that can "pick up" new civil relations. Mr. Xu Guodong put it well: "In fact, the handle to grasp the life relationship adjusted by civil law is to construct the macro category of each part of civil law, and their relationship is the system of civil law. From * * * and the late Roman law to the ladder system of law, and then to the Pendleton system, their changes are all changes in setting the position of' handle', but they have never left their ancestors. The basic framework of these types of civil code systems was laid in the hands of quintus, Mu Qiusi and Xie Yuela. "
It should be pointed out that personality acquisition includes material personality acquisition and spiritual personality acquisition. In the period of free economy before19th century, property rights were regarded as the embodiment of a person's free will and the external field of his freedom. For utilitarians, the purpose of property system is to maximize the total amount of happiness or satisfaction obtained from material or other resources. Hegel, on the other hand, linked property with freedom, regarded property as an individual's self-expression, and emphasized that the purpose of people owning property is to transform nature into the expression of human existence through property, and through this transformation, the natural world can be perfected.
Under the unification of "realization right", equity, creditor's rights, intellectual property rights and new rights that may appear in the future become independent powers, just as under the unification of "ownership", the powers of possession, use, income and disposal are independent of each other.
4. The effect of real right in the realization of personality. Property right is the legal basis for people to control things. As long as people have legitimate reasons to control things, people have property rights. Because things depend on the survival and development of human beings, both contract society and identity society have a substantial concept of real right. Even in ancient China with strict hierarchy, there were still strict laws to protect property rights. Of course, the concept of rights and the concept of equality based on the exchange of real rights contained in the relationship of real rights have very limited influence on the ideology of the whole society in the identity society.
Things directly or indirectly serve the acquisition of personality, which is the axis of property rights system. People obtain property rights through legal acts (or creditor's rights acts or property rights acts, which vary according to different legislative models), and then directly or indirectly obtain personal benefits through factual acts to consume things or through legal acts to operate things; Or obtain creditor's rights through legal acts (creditor's rights acts), and obtain indirect services through the other party's domination of things-that is, the acquisition of personality.
In a word, personality elements include life, body, health, freedom, dignity and so on. Without water and food, life cannot be maintained; The shelter of the body is inseparable from clothes and houses; Health maintenance is inseparable from fitness facilities, health products, medicines and medical facilities; The freedom of thought can not be separated from the platform, pen, ink, books and computers; The extension of physical freedom can not be separated from carriages, bicycles, cars, trains and planes; Without necessary property, dignity can't be supported: although Yan Hui didn't eat from scratch in ancient times, his body was not naked, and his brain was still full of tall and straight thoughts spread by bamboo slips. In most cases, the personality mentioned repeatedly above is achieved by controlling things, such as the screen and projector for watching movies, the chair and knife for haircut, etc. In short, people can't be human without food intake.
Re-emphasize that in order to get rid of their own predicament, people use creditor's rights, stock rights and intellectual property rights to meet practical needs, and at the same time constantly use creditor's rights, stock rights and intellectual property rights to improve the production capacity and exchange capacity of things to meet higher-level needs.
In the interaction between people and things, the production and exchange of things not only support the reproduction of human beings, but also gradually enlighten human beings to understand the rules of distribution in the limited distribution of things, from the strict ethics of identity society to the freedom, equality and dignity of contract society, all from the exhortation of things. Therefore, human beings are gradually moving away from animal nature, forging themselves in freedom and restriction, and seeking a balance between desire and order.
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