China revised the draft property law to prevent the loss of state-owned assets caused by corporate mergers and acquisitions
Editor: stdgx Release Date: 2006- 10-27 2 1:48 Copy Link
Xinhuanet Beijing 65438+1October 27th (Reporter, Wang) At the 24th meeting of the 10th the National People's Congress Standing Committee (NPCSC), which opened on the 27th, the draft property law, which is being deliberated for the sixth time, added another important point in the protection of state-owned assets: those who cause losses to state-owned assets through "merger or division" shall bear legal responsibilities according to law.
In August this year, when the draft property law was deliberated for the fifth time at the 23rd meeting of the 10th the National People's Congress Standing Committee (NPCSC), some members of the Standing Committee suggested that in real life, the loss of state-owned assets caused by corporate mergers and acquisitions was serious, and targeted regulations should be made.
On this basis, the draft revised the relevant provisions to read: "Those who violate the regulations on the management of state-owned assets, transfer collective assets at low prices, privately distribute them, guarantee them without authorization or cause losses to state-owned assets in other ways through enterprise restructuring, merger, division and related party transactions shall bear legal responsibilities according to law."
With the gradual establishment of China's state-owned assets supervision system and the end of the non-tradable share reform, it has created conditions for large-scale mergers and acquisitions of state-owned enterprises.
A recent report by Grant Thornton Corporate Finance, an overseas financial and business consulting company, shows that from July last year to June this year, China companies with a value of $654.38+04 billion were acquired by overseas enterprises, and the transaction amount increased by 52% compared with the same period last year.
The relevant person in charge of the State-owned Assets Supervision and Administration Commission of the State Council pointed out that in the process of merger and reorganization of state-owned enterprises, "snake swallowing elephant", "government pandering", "consolidated statements" and reorganization of unrelated industries are typical ways leading to the loss of state-owned assets. These reorganizations are difficult to ensure that enterprises create ever-increasing profits, and major shareholders often occupy and illegally transfer state-owned assets.
Relevant persons pointed out that the addition of the words "merger and division" in the protection clause of state-owned assets in the sixth draft of the Property Law will help prevent the loss of state-owned assets in the future.
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The principle of equal protection: the distinctive feature of China property law
Liming Wang
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The so-called equal protection principle in the property law means that the subjects of property rights are equal in legal status, and their ownership and other property rights should be equally protected by the property law after being infringed. Equal protection is the first principle of property law, and it is also the guiding ideology of making property law. The principle of equal protection fully embodies the socialist characteristics of China's market economy system, because in western countries, the property law takes the protection of private property as its main function, so there is no need to classify ownership according to the subject, and on this basis, the issue of equal protection is put forward. However, in our country, because the basic economic system is based on public ownership and various ownership economies develop together, it is of great significance to establish the principle of equal protection in the law, especially in the property law, for maintaining the socialist basic economic system.
First, the principle of equal protection fully conforms to our constitution.
Property right is the legal expression of certain property relations. As a law to adjust the property ownership and use relationship between equal subjects, property law must confirm and embody the basic economic system recognized by a country's constitution. On the one hand, the property law must adjust the relationship between property ownership and use right within the framework of the constitution. "The property right system is related to a country's economy, and it is inevitable to adopt a consistent policy as the social norm." [1] In other words, the property law must take the policy determined by the Constitution as the guiding ideology for its basic rule design and system construction. On the other hand, the property law must also reflect the ownership relationship of a country. As the German jurist Bauer pointed out, "As a part of the legal system, the property law contains the fundamental rules of human domination of finance. The composition of this rule depends on the basic decisions established by a country's constitutional system. At the same time, the country's economic system is also concretized according to this basic decision. " [2] Because of this, the property law has a strong inherent law and local color. As a law to adjust property ownership and use right between equal subjects, China's property law is the expression of the basic economic system established by the Constitution in the civil law, and also the concretization of the legal rules protecting various property rights in the Constitution. Therefore, the property law must embody the spirit of the Constitution and conform to the requirements of the Constitution.
As a basic property law, the property law must reflect the ownership relationship of the constitution. The basic function of property law in western countries is to protect private property rights [3], while China's property law also has the function of protecting private property rights, but its protection of property rights is not single. In the primary stage of socialism in China, due to the existence of various forms of ownership, China's property law must confirm the principle of equal protection, reflect the requirements of the basic economic system and the need to maintain various forms of ownership, and equally protect the property of the state, the collective and the individual. The principle of equal protection established in the draft property law is the concrete embodiment of the basic economic system established by the constitution in the property law, and also embodies the basic spirit of the constitution.
The principle of equal protection fully conforms to the Constitution of our country because it conforms to the basic socialist economic system established by the Constitution of our country. China is a socialist country. According to the provisions of Article 6 of the Constitution, China is currently in the primary stage of socialism, and implements a basic economic system with public ownership as the main body and multiple ownership economies developing together. Therefore, "taking public ownership as the main body and multiple ownership systems coexist" constitutes China's basic economic system, and the principle of equal protection in the property law is the full reflection and concrete embodiment of this basic economic system.
First of all, the basic economic system of "public ownership as the main body and coexistence of multiple ownership systems" contains equality among various ownership systems in content, which does not mean that there are differences between different ownership systems. The so-called "taking public ownership as the main body" mainly emphasizes the basic role of various public ownership in the national economy and people's livelihood, economic security and government macro-control and its important influence on the national economy, and also ensures the socialist nature of production relations. I personally understand that the original intention of "subject" is to emphasize the influence of public ownership on economic relations and its basic role in economic life. For example, the implementation of * * ownership in major industries such as steel, transportation, automobiles and energy, which are related to the lifeline of the national economy, is conducive to ensuring the basic economic system and attributes, protecting national economic security and realizing the government's regulatory capacity. Only by ensuring the subjectivity of public ownership can we ensure the direction of socialism. Although there are differences between subject and non-subject in the wording of the above-mentioned constitutional provisions, it can only be understood that various forms of ownership play different roles in the national economy, but not that the legal status of various forms of ownership is unequal. It does not mean that public ownership as the main body means that public ownership is in a superior legal position and other ownership systems are in a secondary legal position. It is precisely because in the constitution, all kinds of ownership are equal in legal status, which determines that the draft property law needs to stipulate the principle of equal protection for all kinds of ownership.
Secondly, equal protection fully conforms to the constitution's stipulation that public ownership is the main body. One view is that different forms of ownership have different positions and functions in the national economy, because Articles 12 (inviolability of socialist public property) and 13 (inviolability of citizens' legitimate private property) of the Constitution are the core clauses and key clauses in the primary stage of socialism in China, and they cannot be equal or equivalent, otherwise the difference between China's property law and western countries cannot be reflected. The property law adheres to the principle of equal protection and is inconsistent with the relevant provisions of the Constitution. We think this view is a misunderstanding of the Constitution. As a declaratory clause, the provision in Article 12 of the current Constitution is reasonable. 1982 when this article was formulated, it was necessary to declare the sanctity of public property in the constitution in view of the phenomenon that some people engaged in "smashing and looting" during the Cultural Revolution. It also makes sense to make this provision from the perspective of strengthening national sovereignty. Because some state-owned natural resources are closely related to national sovereignty, it is necessary to declare the sanctity of public property from the perspective of strengthening national sovereignty. However, this provision is obviously not the provision of the basic economic system. We can't think that all kinds of ownership recognized by the constitution are unequal because of the word "sacred", nor can we infer that we should give priority to protecting state-owned property and treat private property differently because of the word "sacred". Of course, the stipulation in Article 12 of the Constitution is not about China's socialist basic economic system, but the stipulation in Article 6 of the Constitution that "public ownership is the mainstay and multiple ownership systems coexist" is about the basic economic system.
Third, the provisions of the Constitution on the basic economic system emphasize the common development of all kinds of ownership economies, and the basis and premise of common development is equal protection. On the one hand, according to the provisions of Article 6 of the Constitution, China is currently in the primary stage of socialism and implements a basic economic system with public ownership as the main body and multiple ownership economies developing together. Although the constitution stipulates that the state-owned economy is the leading force of the national economy, it also maintains the common development of various ownership economies. According to the strategic direction adopted by this kind of ownership, we do not engage in privatization, but engage in diversification to encourage and protect the development of various forms of ownership. This is the basic feature of socialist ownership in the primary stage of socialism in China. Since we want to realize the common development of various economic sectors, we must give equal protection to other economic sectors. Therefore, emphasizing the equal protection of different ownership rights by property law is the only logical explanation of the equal protection of various ownership components by the Constitution. Without equal protection, it is difficult to have common development. Without it, equal protection will lose its proper purpose. On the other hand, only by stipulating the principle of equal protection in the property law can we consolidate the basic economic system in the primary stage of socialism, eliminate all kinds of "left" and "right" interference, and strengthen the correct direction of socialist reform and opening up. The constitution stipulates that all kinds of ownership economies develop together, which is also a summary of the law of economic development in the primary stage of socialism. Practice has proved that the socialist basic economic system can only be consolidated if efforts are made to promote the simultaneous development of various ownership economies. In the long run, the reason why the property law affirms the principle of equal protection is to make the development of multi-ownership economy a long-term basic national policy of our country. Only by equally protecting and promoting the development of various ownership economies can the property law really play its role in safeguarding the basic socialist economic system.
Fourth, equal protection and industrial policy are not contradictory. It is true that in China, different ownership systems are different in public resource allocation, market access and bank loans. For different types of enterprises, the state does have some policy differences in taxation, credit, market access, employment indicators, etc., and this inclination does exist for some state-owned enterprises in terms of loans. We must ensure the control of the state-owned economy in important industries and key areas related to national security and the lifeline of the national economy, but these differences are not contradictory to the principle of equal protection. Property law is a private law, which establishes the ownership and use right of property, while the national macro-control policies and special provisions on market access belong to the scope of public law adjustment and do not belong to the content of property law. In fact, there are some differences in industrial policies of different countries in different fields and different subjects, but this does not affect the equal and unified protection of private property. On the other hand, the difference of industrial policies mainly affects the acquisition of property, but does not affect the equal protection of civil subjects who have obtained some property rights. The principle of equal protection of property law involves equal protection of civil subjects after obtaining property rights. These differences are mainly reflected in the differences before they acquired property. After they acquire property, the law should of course give equal protection to their property. Property law does not involve the adjustment of preferential treatment for acquired property, nor should it intervene in the field of preferential policies. From the point of view of property law, once the property of different sources and properties is determined to have certain ownership, the same legal rules should be applied in the transaction relationship.
The principle of equal protection is completely in line with China's constitution, because China's constitution not only establishes various forms of ownership, but also stipulates equal protection of ownership. The constitution itself implements the requirements of the principle of equality in the protection of property. For example, although the current constitution stipulates that "socialist public property is sacred and inviolable", it also stipulates that "citizens' legitimate private property is inviolable. "The state protects citizens' private property rights and inheritance rights according to law." [4] The Constitution emphasizes the protection of state-owned property, but there is no difference in the actual protection rules for various types of property. In particular, it should be pointed out that it is the obligation of the state to protect all kinds of property rights equally. For example, Article 2 1 of the constitutional amendment stipulates: "The state protects the legitimate rights and interests of individual economy, private economy and other non-public economy. The state encourages, supports and guides the development of the non-public economy, and supervises and manages the non-public economy according to law. " This article actually clarifies that the state has the obligation to protect the non-public economy, and state organs have the obligation to protect the legitimate rights and interests of the non-public economy from infringement in the process of exercising their respective functions and powers. Therefore, according to the unanimous view of constitutional scholars in China, from the connotation of the constitution itself, it actually embodies the spirit of equal protection [5]. The equality principle in the property law is only the concrete embodiment of the constitutional equality principle in the property law.
In a word, the principle of equal protection is constitutional, because equal protection of all kinds of property conforms to the spirit of equal protection in the Constitution. Equality before the law is a basic legal principle and a basic constitutional principle. 1789 Article 6 of the French Declaration of Human Rights declares that "the law is the same for all people, whether it protects them or punishes them". Paragraph 2 of Article 33 of our Constitution stipulates: "China people and citizens are all equal before the law." It is generally believed that equality in the constitution is both a basic right and a constitutional principle. Because "the concept of equality in the constitutional sense is based on the equal value of constitutional norms and embodies the connotation of equality in the constitutional effect." [6] The so-called "equality before the law" or "legal equality" can be expressed as "the principle of equality" for the country, and as for individuals, it can be expressed as equal rights. [7] Everyone is equal before the law, including equal property rights. On the one hand, since everyone is equal before the law, including equal rights, property rights, as one of the basic rights of citizens, must be equally protected with public property in accordance with the principle of equality; On the other hand, property right, as the basic right of the subject, is also of great significance to ensure the realization of its subject qualification. The inequality of property is far from the equality of subjects, especially for enterprises, which are inseparable from property, which is the blood of their survival and development. In a sense, the enterprise itself is even a talent property that exists for a certain purpose. In some commercial transactions, the enterprise itself is regarded as the property of the transaction object. If the property is not equal, it means the subject is not equal, which will inevitably shake the foundation of a society ruled by law. In China, "ruling the country according to law and building a socialist country ruled by law" has been written into the Constitution, and the country ruled by law is characterized by equal protection of all kinds of subjects. To some extent, not only the form of ownership itself requires equal protection, but also all kinds of property rights require equal protection. The foundation of a society ruled by law is to treat all social subjects equally.
Second, equal protection is an inevitable requirement for establishing and perfecting the socialist market economic system.
To understand the socialist basic economic system accurately and comprehensively, we must see that China's basic economic system not only takes public ownership as the main body and various economic forms develop together, but also includes the other side, that is, China implements the socialist market economic system. China's constitution clearly stipulates that "the state practices a socialist market economy", which is also a complete expression of China's socialist basic economic system. Only by combining these two aspects can we fully understand and understand the provisions of our constitution on the basic economic system.
The report of the Third Plenary Session of the 16th CPC Central Committee pointed out that to establish and improve the socialist market economic system, we must "guarantee the equal legal status and development rights of all market participants". Accordingly, as a property law to adjust the relationship between property ownership and use right, it should take protecting the equal legal status and development right of all market subjects as one of its basic tasks and objectives. Therefore, the draft property law must establish the principle of equal protection, ensure the equality of all subjects participating in market economic activities, establish the equality of starting point, make all subjects trade equally and compete fairly, and finally promote the prosperity and development of socialist market economy.
First, only by adhering to equal protection can we provide a basic property rights system framework for the market economy. The principle of equal protection is determined by the nature of China's socialist market economy. The so-called market is composed of numerous complex exchanges that occur repeatedly every day. The most basic elements of transaction are property right and contract, because the transaction requires the subject to enjoy his own property right as the premise, and the transfer of property right is the purpose of transaction. Therefore, the construction of property rights is the basic rule of the market, but the property rights system as a rule of market economy must be based on equal protection. Because, on the one hand, the market economy naturally requires equality, because the transaction itself is based on equality. Denying equal protection means denying the equal status of both parties to the transaction and the nature of the market economy. On the other hand, market economy naturally requires that the subjects of market competition are equal, and only equality can achieve equality in competition. Any enterprise, whether public or private, big or small, must compete equally on the same starting line and apply the same legal rules. Only in this way can we really promote the development of market economy. And equal status needs to be achieved through equal protection of property law. If different protection is given to different ownership properties, there will be no equality in ownership and legal equality. Classifying property ownership as 369 means that different enterprises themselves are also classified as 369, because the unequal legal status of property inevitably determines the unequal legal status of enterprises occupying property. This will inevitably lead to legal inequality between state-owned enterprises and non-state-owned enterprises, and state-owned enterprises will inevitably enjoy certain legal privileges, which is completely inconsistent with the inherent requirements of the market economic system we want to establish.
Second, equal protection is the basis of establishing a market economic order. Under the condition of market economy, the trading subjects are equal, the interests are diversified, and the resource allocation is highly mobile. Market subjects pursue their own interests from the perspective of maximizing their own interests, which makes the operation of market economy intertwined with various contradictions and conflicts. Therefore, it is necessary to coordinate and standardize the behaviors of various subjects from macro and micro by legal means in order to maintain the legal order of market economy. Establishing the principle of equal protection of property rights through property law is helpful to maintain fair market order and lay the foundation for the establishment and development of market economy. The reason why the market economy needs the property law lies in that the property law affirms the principle of equal protection, fully encourages market subjects to engage in market transactions extensively and deeply, and launches fair competition. Even the state, as a civil subject, participates in all kinds of civil activities based on state-owned assets, such as issuing government bonds, treasury bonds and external guarantees. The state should be on an equal footing with other civil subjects and abide by the general principles of civil law to regulate civil activities. As a whole, when the state is a civil subject, it is equal to other civil subjects. Similarly, state-owned enterprises and state-owned holding companies should be equal to other civil subjects when they participate in civil activities. We can't set some special protection rules for the state-owned assets they control, otherwise it will limit the enthusiasm and creativity of such market players in the market competition, and ultimately it will not be conducive to the appreciation and preservation of state-owned assets. China's current civil legislation, especially the General Principles of Civil Law, emphasizes that all civil subjects are equal in civil activities, that is to say, as long as they engage in civil activities, no matter what the specific form of civil subjects is, they must abide by the same rules of the game equally. Otherwise, the civil activities they engage in cannot be called civil activities, and such subjects are not qualified to be called civil subjects.
Third, equal protection is the condition for the equal development of market players. Under the condition of market economy, the equality of property rights protection not only creates the premise for market participants to engage in market transactions and fair transactions, but also provides conditions for the common development of enterprises of various ownership systems. After the founding of New China, a highly centralized planned economy system and the policy of "one university, two universities" were implemented for a period of time. There is no equal relationship between public ownership economy and non-public ownership economy, which seriously inhibits the development of non-public ownership economy. The inequality of property protection means that different enterprises have different legal status, and even some enterprises are obviously discriminated against, which will seriously damage the survival and development of enterprises. Only after the reform and opening up, the state established a market economy system to promote the simultaneous development of various ownership economies. The practice of China's reform and opening up shows that it is precisely because of adhering to the principle of equal protection and synchronous development of all forms of ownership that the potential of socialist public ownership has been maximized and the enthusiasm of hundreds of millions of people to create wealth has been mobilized, so that China's economy has maintained rapid development for more than 20 years and its comprehensive national strength has been rapidly improved. This is also the characteristic of China's socialist market economy. It can be said that it is the equal protection of different ownership economies in policies and laws that has enabled China's economy to develop healthily and rapidly, social wealth to grow rapidly, comprehensive national strength to be greatly improved, and people's living standards to be greatly improved. Only through equal protection can we create basic conditions for the equal development of market players.
The right of equal protection is the basic right that all kinds of market subjects should enjoy for their survival and development. On the one hand, the equality of property means the equality of enterprises. As the main body of market activities, enterprises depend on the domination and control of certain property, and the market transaction behavior is reflected in the disposal of certain property by enterprises to a considerable extent. If property cannot be protected equally, the legal status between enterprises is unequal, and market transactions cannot be carried out at all. If all kinds of property are treated differently according to their property owners, in fact, the market subjects are divided into different levels, which can not achieve equal competition among market subjects at all, and equal development is impossible. On the other hand, equal protection means obeying the same property rules. At present, the key to measure whether the economic system of a country or region is a market economy depends on whether the market plays a fundamental role in optimizing the allocation of resources. One of the important signs is whether the legal status of market subjects is equal, whether they follow the same rules of the game, and whether the civil and commercial legal system regulating the market economy is established and improved. Anti-monopoly law, anti-unfair competition law and other basic legal rules for maintaining the market economy are all aimed at maintaining and ensuring the equal status among market subjects, while property law realizes the equality among market subjects through equal treatment and comprehensive protection of all kinds of property. This kind of equal treatment requires all kinds of market subjects to follow the same rules when enjoying and exercising property rights and their rights are violated, which is also the inherent requirement of market economy. If the Property Law, as the basic law of market economy, abandons the principle of equal protection and treats and protects different properties unequally, it will be difficult to prove that China really implements the socialist market economy system.
Fourth, equal protection is the driving force and source of market economy prosperity and economic growth. American jurist Pound famously said, "In commercial times, wealth is mostly made up of promises" [8]. Since the contract constitutes the main content of wealth, it naturally requires an equal relationship between market subjects, and the ownership of property is the premise of trading behavior, which requires the property law to give equal protection to all kinds of property subjects. Only by confirming the equality between market subjects can we establish an effective incentive mechanism, so that market economic subjects have enough motivation to participate in market economic activities and promote economic prosperity and development. The principle of equal protection requires not only the protection of public property, but also the protection of individual property rights in a very important position. Wealth is created by all living things, and fully releasing the potential of individuals to create wealth is the basis for invigorating the economy and rapidly improving China's comprehensive national strength. The ancients said: "Those who have permanent property have perseverance". Without equality and full protection of private property rights, people will have no certainty in realizing property rights and enjoying benefits, and so-called "permanent property" will not be formed. It is difficult for people to have confidence in investment, desire to buy property and motivation to start a business. Only by strengthening the equal protection of these properties through the property law can hundreds of millions of people be inspired to create wealth, care for wealth and get rich legally. If we treat all kinds of property differently, look down on private property, or even kill the rich to help the poor, citizens will not dare to buy property and start businesses, enterprises will not dare to become bigger and stronger, there will be a lot of wealth waste and a large outflow of assets, and poor countries and weak countries will not be able to talk about the great rejuvenation of the whole Chinese nation.
Three, the principle of equal protection applies to all types of state-owned property.
The principle of equal protection of property law, as a rule to confirm the ownership and use right of property, especially the protection of property, can be applied not only to property that has entered the trading field, but also to property that has not entered the trading field, even to state-owned property. There is a view that the property of various market subjects does not necessarily enter the market transaction field, so the equal protection of property by property law is not necessarily related to the market economy. Because many state-owned properties do not enter the transaction field, the application scope of the principle of equal protection of property law to state-owned property relations is limited.
It should be admitted that the principle of equal protection established in the draft property law is closely related to the inherent requirements of the market economy. It first exists as a basic rule of market economy and plays an important role in the development of market economy. This does not mean that the principle of equal protection only adjusts the property relations that enter the trading field, but also applies to a large number of property relations that do not enter the trading field. On the one hand, the principle of equal protection, as the basic principle of property law, not only embodies the inherent requirements of market economy, but also embodies the basic socialist economic system. The connotation of China's basic economic system already includes the requirement of equal treatment of ownership in legal status. Therefore, the principle of equal protection of property law not only involves transaction relations, but also has a very wide scope of application. Any type of property relationship, whether it enters the transaction field or not, objectively requires equal treatment in the property law, and when its property rights are infringed, it is also protected by the property law. As a basic law to adjust property relations, property law is not only to adjust transaction relations, but also to adjust property rights related to transactions. On the contrary, it should confirm and protect all kinds of property rights. If the principle of equal protection cannot be applied to all kinds of property, it is inconsistent with the property law as the basic property law. On the other hand, any kind of property, as far as its ownership and use rules are concerned, can not be exempted from the adjustment of the property law. If property is not regulated by property law, it means that it is not a kind of property, as bramante said: "Accurately speaking, property led to the emergence of civil law. Without property, there would be no law and government. " [9] As long as it is adjusted by the property law, the rules of the property law must be applied. Because any property is the object of civil rights in the final analysis. In the case of property infringement, only by adopting the method of civil law can we get adequate relief.
From a practical point of view, there are indeed some state-owned properties that do not enter the trading field. For example, many state organs and institutions occupy state-owned property and do not transfer their property. Can the principle of equal protection in market economy not be applied to these properties? We believe that the principle of equal protection applies to all types of property as well as to all types of state-owned property. Because any type of state-owned property, whether it enters the trading field or not, should apply the principle of equal protection. This is because:
First, any type of state-owned property must be legally manifested as property rights, and this right must be confirmed through the property law. That is to say, state-owned property itself is still a civil right, or a right in private law, although state-owned property has a strong administrative color in property management, supervision and the exercise of state-owned property, and even in many cases there is no strict distinction between state ownership and administrative power. However, when the state-owned financial right is expressed as property right, it can only be expressed in the form of civil rights. If state-owned property belongs to the right recognized by public law rather than property law, it is not real property right. When the property law confirms the state-owned property right, it must treat the state-owned property right and other property rights equally and recognize their equal status. Therefore, whether state-owned property is acquired or exercised, and the objects owned by the state have their own characteristics. These characteristics have also been confirmed by China's civil law and economic law. Even if no property enters the trading field, it is still a kind of property. Property that does not enter the trading field may be restricted by multiple departmental laws, but this does not mean that it has a superior position than other property. Even the state-owned natural resources have a very important strategic position, even related to national sovereignty, but the property rights rules of civil law should still be applied. It is also difficult for us to imagine designing a legal rule and giving it a superior position. Of course, we can design some exceptions according to the characteristics of the property law itself, such as about the state.