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私权的分析与建构:摘要

  第七章“私权的救济”从法律关系的角度对救济权概念作了一般定义,分析了救济权的四种基本形式及其与诉讼形式的关联,分析了侵权行为法的内在逻辑,强调了民法责任的财产性质及其合理性。 
  结语“分析法学与中国民法典”认为法典编纂与分析实证主义的兴起是中国民法发展的趋向,并指出中国民法典的编纂面临的三个重要问题是融合不同法系之传统、吸收中国本土习惯法、解决社会新问题,以及分析法学在其中可能发挥的方法论的作用。 
  ABSTRACT
  This dissertation is an introduction to a general study of private right, and the approach to the subject adopted here is labelled Analytical Jurisprudence. 
  Chapter I reviews the history of the word ''right'' and its antecedent in the classical language of European culture, viz. ''jus'', and tries to give a satisfactory definition of private right on the basis of a critical examination of previous theories related to the distinction between private right and public right. 
  Chapter II is given to the discussion of Hohfeld''s classic on fundamental legal conceptions. Hohfeld, a American jurist, building on earlier juristic work, published an analysis of rights which , thought poorly understood by many of its exponents, satisfactorily accommodates a wide range of lawyers'' uses of the term '' a right'' and its cognates. Though his writings are more than 80 years old ,the influence he continues to have over those interested in the theory of rights justifies his place in this dissertation. 
  Chapter III focuses on the construction of a comprehensive conceptual framework to be applied to the analysis of private right in the context of civil law. The methodological discourse and terminologies discussed in this part forms the core of this thesis. 
  Ownership is one of the key institutions of human society, and also the most important conception in the theory of Civil Law. Chapter IV makes a comparative study of the different concepts of ownership in the different legal traditions of Roman Law and Common Law, and makes a analysis of its common feature transcending particular systems by the comprehensive conceptual framework developed in Chapter III. The concept of ius in res aliena and property is also discussed in this chapter. 


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