Social Sciences in China (Chinese Edition)

No. 4, 2021

From “Separation of Powers” to “Exercise of Rights”

(Abstract)

Cai Lidong

The formative mechanism of usufruct affects the structure and capacity of the real rights system, and thus contains great potential for theoretical innovations in property law. The theory of the grafting the separation of specific powers has involved useful theoretical explorations in terms of explaining the usufruct system in China’s pre-Civil Code era; however, it fails to go beyond the paradigm of the established theory of the separation of powers and does not jettison the inherent flaws of that paradigm. The Civil Code enriches the categories of usufruct rights and provides a scheme for the legal implementation of allocating and sharing land and other factors of production through market mechanisms, premised on adherence to socialist public ownership. In the era of the Civil Code, constructing a generative mechanism for usufruct with the logical thread of the theory of the exercise of rights is beneficial to bridging the gap between existing theories and institutional practice and enhancing the explanatory power of theory. This will also lay a theoretical foundation for the establishment of a multi-layered usufruct system.