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Web of Proceedings - Francis Academic Press
Web of Proceedings - Francis Academic Press

Re-interpretation of Abstraction Principle of Real Right Act

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DOI: 10.25236/mfssr.2019.002


Qian Gao

Corresponding Author

Qian Gao


Under the current legal system of real right in China, according to the theory of Abstractness and relativization of Abstractness, there may not be a situation where creditor's right act is invalid and real right act is effective, then the theory of Abstractness has no basis for existence. So some scholars believe that relativization of theory of Abstractness is the negation of the theory of real right act. Fundamentally, the real right agreement (Einigung) should be totally different from the creditor's right agreement (Konsensus). It only includes the creation, alteration and abandonment of the real right, not the content of payment consideration. The effect of the real right action is not affected by the effect of the creditor's right action, but by the effect of its own constituent elements, so it is not the relativism of Abstractness, but the performance of absolute Abstractness. In practice, there are a large number of cases in which creditor's rights act is invalid while real rights act is valid.


Real right act, Abstractness of real right act, Re-interpretation