物权的性质、取得与保护：普通法与大陆法的比较

Abstract

Purpose of research: comparing the nature, acquisition and protection of property rights under Hong Kong common law and mainland property law in order to evaluate whether the latter is in line with the Anglo-American international standards. Research methodology: using comparative approach to compare Hong Kong and mainland property law and to engage in doctrinal analysis. Research outcome: Hong Kong and mainland property laws are conceptually quite similar in terms of the nature, acquisition and protection of property rights, eg they both allow individuals to own a bundle of rights over the land including the right to use, but not the ownership of the physical land. However, there are many important differences, eg right of use in the mainland is limited to a period of time, whereas in the Anglo-American system, there is fee simple; in mainland, property rights do not cover things that have no physical existence; owners of rights are specific, not relative; land does not include fixture; there is only legal but not equitable ownership; before buyer registers his property rights, he only has a claim against the seller in debt, and cannot obtain an order of specific performance; cannot obtain ownership through equitable principles; oral contracts only result in a claim in debt etc. Research conclusion: mainland property law is more concerned about formality and formal justice in order to achieve efficiency. When the law is not adequate, it will result in rigidity and unfairness, and may lack substantive justice and conscience as is achieved under equitable principles. If they can introduce some equitable principles where appropriate, it will enable the mainland property law to be closer to human nature, to be more about substantive justice and closer to international standards.