Il dominium utile tra le esperienze diverse

The thesis aims to clarify the historical profile, the particular characteristics and the various dissertations of the Medieval property theory dominium utile and to confront it with analogue institutions in traditional Chinese law. The author intends to confirm that dominium utile was by nature the reflection of a Medieval idea of property on the giurisprudence. Considered as an artificial introduction of the Civil Law, the dominium utile was frequently described as a secondary property by the doctores. Yet such a dipendent feature doesn't diminish the role it played on both theoritical and practical dimension. Dominium utile is deeply rooted in the system of property elaborated by Bartolus, thus reveals how the Medieval giurists emphysized the economic essence of property at the expense of the unity and exclusivity of dominium. The Roman dominium now is replaced by the Medieval dominia. In spite of the harsh rebukes of the legal humanists who were active in the 16th century, dominium utile won the support of many illustrious jurists thanks to its irreplacable value for the jurists who were engaged in responding to land problems of that time. The separation of two dominia exists in traditional Chinese law, too. Diffrent from the European experience, in China the separation of property was realized by customary law. People gave a particular attention to the economic value of a land to the extent that the tenant could claim the property of the surface of the land, while the owner had nothing more than the property of the bottom. The customary law tended to erode the formal property, which ended up becoming a right to the rent. This phenomenon can explain partly why the traditional Chinese law was not able to develop a modern conception of the property by itself. Aware of this deficit, the legislators of the Repubblic of China set out to suppress the separation of property by means of codification during the 1920s and the 1930s. For them, the establishment of a European property is necessary to modernize the country. Such a consideration doesn't disappear even afer the abolition of the codification of the Repubblic of China in Mainland China.