Strait Innocent Comparison
Jane Head
I. Elements of Good Faith
First, the scope
Second, the criteria for determining good faith
Third, whether the assignee should be paid to obtain
Fourth, the controversy delivery
II, Innocent exception
In addition to protecting ownership of property law, the transaction must pay attention to safety is the issue of property law. How to coordinate all security interests and the relationship between trade, property law has become the most worthy of one of the issues. Ownership Protection (Static security ) and transaction convenience (dynamic security), the two interests must compromise, mutual consideration, good access to the system, it is the balance between these two agents in mainland China issued .2006 <<PRC Property Law "" (the following referred to as the "<<Property Law >>"), and under Article 106 which clearly defines the Innocent, but good access to the system on many of the issues not yet conclusive, there is still room for research. This paper will adopt the perspective of comparative law , focusing on cross-strait Innocent compared to mainland China in the future of theoretical research and have implications for judicial practice.
I. Elements of Good Faith
Continental <<Property Law "> Item 1 of Article 106 of the provisions of the Good Faith has four elements: First, the Department makes no right to dispose of, the second, the assignee of the immovable or movable property when the transferee is well-intentioned Thirdly, the transfer of a reasonable price, the fourth, the transfer of real or movable property shall be registered in accordance with the law have been registered, no registration have been delivered to the transferee. Taiwan, "Civil Code" Article 801, Section 948 Good Faith required elements are: first, the subject matter shall be movable property, and second, the grantor must be a person in possession movable property, and the third, the grantor shall be no right to man, the fourth, by the assignee to movable property of the possession, the fifth, the assignee shall in good faith. [1] Elements of comparison from the above can be seen, the main difference between both sides of the application of acquired in good faith and whether the conduct of transactions required to Youchang two, therefore, below will focus on the difference between the two for comparison. Meanwhile, the two sides for the criteria of good and movable property acquired in good faith is not the same delivery requirements, the following also compared these two aspects into the scope.
First, the scope
Continental <<Property Law "> the bona fide acquisition provisions in the title series of the" ownership made special provision "in the chapter, and Taiwan," Civil Code "Property Code, the bona fide acquisition system provides the right of ownership of a chapter," property ownership "of a section and the "possession" in the chapter. from the 801 and section 948 of the context and system point of view, Taiwan's good only for access to the system property.
Bona Fide Acquisition of the continent is not the case. <<Property Law "> Item 1 of Article 106 clearly states:" no right to dispose of real or personal property will transfer to the assignee, the owner the right to recover, unless otherwise provided by law In addition, the following circumstances, the assignee shall acquire ownership of the property or chattel ... .... "So, the mainland's good access to the system not only applies to personal property, but also for real estate. Such practices civil law in the mainland much academic controversial.
In "<Property Law"> before the enactment, Professor Liang Huixing with Professor Wang Liming, presided over the drafting of the Draft of the two views on this issue is inconsistent. Professor Liang Huixing sponsored draft of the provisions made in good faith applies only to personal property system, [2 ] because of the characteristics from the real point of view, to register for the publicity because of its method of share trading on the Buzhi Yu mistake all people, so it is excluded from the acquisition in good faith the system. [3] and chaired by Professor Wang Liming, The Draft acquired in good faith in the system not to limit the application of movable property, and its Article 78 also stipulates that "in good faith and trust in the registration of real property register, and with the registered person has the right to record transactions, and thus obtain the right to ownership of real estate or other , and mutatis mutandis the provisions of movable property acquired in good faith. "[4], Professor Wang Liming, chaired by the provisions of the reasons for such a proposal is issued [5]: First of all, since the result of a registered real estate transactions will be errors, omissions, and other reasons are not registered has no right place action problems, then there is also the third person informed the question of whether the goodwill of the problem. Second, from the national legislation of view, most also apply to real property acquired in good faith recognition system, such as Germany <<Civil Code>> Article 926, Article 973 Swiss Civil Code. In addition to experts, chaired by Professor Wang Liming, draft proposed system to support real property acquired in good faith, there are other scholars agree with this statement in the article, made in good faith that the real property registration system and the credibility of the system is different The third reason why people can enjoy the protection of credibility, because it as good, therefore, to achieve credibility Baohu bona fide third parties, it must have bona fide Acquisition System. [6], but most scholars believe that the applicable scope should be made in good faith limited to the property. [7]
Bona fide acquisition of real estate registration system is the credibility with the principles to achieve the purpose of maintaining transaction security, which adopted the principle to maintain the credibility of the possession of movable property acquired in good faith transaction security system, the difference is obvious. Thus, a complete real estate has been established rights registration system in countries and regions, in addition to illegal construction and a handful of real estate registration have not been saved, there are permitted to discuss real property from personal property acquired in good faith whether the system is necessary, but for other situations, no beneficial to discuss this issue . [8] So, why <<Property Law "> the traditional system for movable property acquired in good faith?
The approval from the legislature a number of books, we can ascertain to <<Property Law "> adopt certain real property acquired in good faith that the reasons: First, real estate acquired in good faith exists, because the credibility of the possession of real property still needs to be recognized. China Mainland China's real estate registration system has not been perfect, "rural real estate, especially in the private houses of farmers and their land use right registration of not more prevalent, ... ... should be considered a bona fide acquisition allows a permitted, so good by people to judge the person in possession under the real estate housing property ownership. "[9] not and will not recognize the credibility of the principle of possession, not in line with national conditions. Second, if the registration error, the parties in good faith, never dispose people to buy the Housing and register transfer, the transferee shall obtain home ownership in good faith. [10] Clearly, the legislature that the real property acquired in good faith on one hand is the credibility of the transaction for the trust in the goodwill of possession of a third person, on the one hand is the registration error for the trust bona fide third real estate transaction, while the second is what the buyer in good faith registration on the credibility of the traditional civil law to protect the object. Based on the current rural estate of the mainland's national conditions generally are not registered on the first bona fide third special provisions for the protection of property acquired in good faith the system is still reasonable, but, in the "<Property Law"> the provisions of Article 16 has been registered under the premise of credibility, the need for a second bona fide third parties acquired in good faith and then be the estate system, there is a substantial question.
Many mainland scholars of civil law scholars to discuss real property acquired in good faith in the system, actually registered real property acquired in good faith and credibility of mixed together. Although the purpose of the two systems are reliable error protection of bona fide third party registration, but was different scholars crown discussed a different name. mainland judicial practice, there are many courts use the so-called "theory of real property acquired in good faith" handling of cases, the underlying reason is that mainland China's lack of current real estate registration system. On the one hand, while existing legislation mainland For real estate transactions on the register as force elements, but in the "<Property Law"> is not established before the implementation of the credibility of real estate registration, so that the court can only be achieved through good theory to protect those who trust in the bona fide third real estate registration, and the other On the one hand, the registration authority does not unified, long registration, so that in practice often the register a registration authority can not be true and complete reflection of the property rights on the situation of great harm for the security of transactions, the urgent need to obtain the help of good theory to remedy them. [11] acquired in good faith if the real property registration system and the credibility of the system content is the same, the two conclusions are consistent with value judgments, registered in the law has established the credibility of the premise, whether to be the estate Innocent does not affect the interests between the parties, but merely a legislative technology. [12] "appropriate legislative technique, should be followed 'legislation aesthetic', as concise, convenient, and avoid duplication of legal rules, cumbersome legislation technology. "[13] In this regard, the mainland Tsinghua University Law School Professor Cheng Xiaofu said that if property rights in the mainland legal system is not perfect, when, with good access to the system to compensate for the lack of credibility of real estate registration and the negative effects, can still understand the words, then, in our <<Property Law "> has clearly defined the credibility of real estate registration system, when put forward any real property acquired in good faith go like the theory not only makes no sense, but will for the future of real estate registration System and security of transactions have very adverse consequences. [14] However, based on the goodwill generated to obtain possession of the credibility of the system, the registration system is not perfect for private houses in rural areas there is still room for. [15]
Second, the criteria for determining good faith
Acquired in good faith the core of the system is "good" word, then, is the third person to determine how well-intentioned?
On Taiwan, "Civil Code" Article 801 "goodwill" of the content of what scholars generally believe that the so-called "good" means I do not know no ownership or disposition of the grantor, the grantor is in good faith and has nothing to do. The problem is that good is it necessary to no-fault is it necessary? General say that the scholars in Taiwan, from the literal interpretation of good faith is not know or unknown, whether for negligence and I do not know, this should not be considered, however, is the measure of good faith transferee system taking into account the interests of all legislation and transaction security purposes, such as by the objective situation, the trading experience, the average person can be identified to whom the grantor the right to free persons, shall be deemed a third party in bad faith. [16] Thus, Tong said that the good faith consideration of the no-fault, but still do not know the third person investigation of ordinary people to judge whether, in fact, consider the third issue of fault. Therefore, some scholars have argued that patients should refer to the German legislation, will interpreted in good faith shall not knowingly or due to gross negligence and did not know the grantor and the right not to. [17] Taiwan, "Ministry of Justice" in the proposed "Civil Code" the draft amendment is also adopted this view: "I do not know to the assignee and No one to whom the right was due to a major fault, with its own negligence, should be expressly excluded from the scope of protection other than to maintain the security of the original ownership of the static, this not only for scholars, Stone said, nine hundred and thirtieth German civil law The second has to do the same two provisions, "[18] Accordingly, the Taiwan" Ministry of Justice, "Civil Law Civil Code draft amendments to the ninth forty-eight at first, but added the proviso:" But knowing that the transferee or due to gross negligence and did not know to whom no right of the grantor, unless. "
Judgments about the good time, Taiwan scholars believe that the transferee when the transferee in good faith is enough, after the transferee is not entitled to dispose of knowing things, still apply to bona fide acquisition. [19] Specifically, in the real delivery, when delivery is good, the simple delivery, and the agreement is so good when, in the direct delivery is the right to request the assignee to obtain the return of good faith. [20]
Mainland China <<Property Law "> before the promulgation of good faith to achieve a system of justice in the mainland narrow the scope of practice, legislative requirements on the lack of system, but movable property acquired in good faith for the system of academic research is not lacking. Made in good faith on the movable "goodwill" of the criteria, in theory, the "positive idea that" and "negative perceptions that" parts, the former require the assignee must be regarded as everyone's idea of the transfer, which also requires the assignee did not know people should know that no right of people to transfer. mainland Stone said that the negative attitudes that should be adopted. [21], chaired by Professor Wang Liming, Draft of 75 and Professor Liang Huixing chaired draft of Article 145 also provides criteria for judging good faith, that "I do not know when the assignee transferee transferor no right to dispose of movable and without gross negligence, for the good." [22] Therefore, the draft will be adopted for the two "negative concept" to determine whether the parties as good, while only "knowledge" does not necessarily constitute a good faith, must also be a result of gross negligence and did not know right and wrong. for negligence judgments, objective criteria should be adopted, that the general standard, with the objective situation and, by virtue of transaction experience can be made to determine whether or not the basis as a measure of goodwill. [23] such a criterion of good, has become academic links say, and Taiwan on the "goodwill" of the criteria, basically the same.
<<Property Law "> after the implementation of real property acquired in good faith in" good faith "how to judge, has become an important issue.
Some scholars believe that the real estate registration have the support of national reputation, with a very high credibility, and credibility of different plays, so, real estate acquired in good faith "goodwill" and personal property acquired in good faith to determine the standard of "good faith" criterion is different from a , the real property acquired in good faith with the unity of the good criteria, namely, the registration as long as the third party trust is presumed to be good, unless he knows the registration error, without judgments, as chattel, as buyers in good faith to consider the transaction environmental factors, and need not adopt the general criteria to judge people's good or not. [24] On the other hand, the third party access to the register must be implemented positive behavior, the rights recorded on the register had a reasonable trust conditions. If the third party inspection lazy, then it does not constitute a presumption of good faith. [25] However, some academics have suggested a different opinion, that the third person from the Register of active Search are good, but the third did not inspect the register book, that the transaction object has been recorded in the register book, this is true right right, this state is also good. because the registration is an objective fact, legitimate stakeholders in the freedom and convenience to access the case of the register, the registration with the publicity of natural sex, because if someone does not lose access to the basic functions of publicity. Therefore, I do not know if the third party the right to registration rights is not true, constitute good, I do not know whether the reasons for negligence, in the do not ask. [26] However, if proves the error recorded in the third person who knowingly register or disagree in the Register of registration records, and can be excluded from the presumption of good faith third party. [27]
As mainland China <<Property Law "> real estate acquired in good faith the provisions of the system is actually based on the credibility of real estate registration established system of protection of bona fide third party and, therefore, Taiwan, 1 of the Civil Code Article 759 provided for the credibility of a real estate registration comparable between. Taiwan, one of the provisions of Civil Code Article fifty-nine: "�� real property by the registration, the registration rights of presumption of legality of people have this right. �� in good faith in reliance on registration of real estate of a third person, in accordance with legal acts have been registered for the property changes, their effect changes, not because of the original registration of the property affected by the false. "Tong said that in Taiwan, of which the so-called" goodwill "refers to the false registration of title I do not know whether with gross negligence and I do not know do not ask, movable property and civil ninth forty-eight goodwill acquired in good faith means different things. In addition, based on reliable registration of the fact that the registration has been presumed to be true, usually those who do not know the trust shall be considered as not true, therefore, should be subject to presumption of good faith, with or without access to registration also do not ask. [28] Thus, Taiwan, the credibility of real estate's "good faith" interpretation of the majority of scholars said the mainland is different.
Third, whether the assignee should be paid to obtain
Transferee from the transferor through the transactions obtain the property, should we get paid?
Taiwan, "Civil Code" elements on the Good Faith does not require the assignee to obtain compensation system, but made the case for free, how should the balance between the original owners and the interests of the assignee, quite controversial. To address this questions, Germany <<Civil Code>> Section 1 of Article 816, paragraph 2, free of charge as a result of the assignee no right to dispose of the act, directly benefit people who received the law, the owner shall assume the obligations of the return of unjust enrichment . but Taiwan does not have this requirement of civil law, then the original owner if the assignee for the unpaid claim of unjust enrichment? this, scholars in Taiwan and denying that there are certain that the two views. certain that the person, such as Mei Chung Association President, Mr. Zheng Yubo, Mr. Wang Zejian, Mr. Sun Senyan, but certainly that, again, stand directly applicable to civil law first eighty-three [29] regulations, but also advocated by analogy to the first eighty-three provided. The former, such as Mr. Sun Senyan that "If the free and the transferee, with the right action is not occurring between the unjust enrichment issue, cover the affected interests, and no right to dispose of human behavior have free legal reasons exist. but if the implementation of this principle, if no right to dispose of the damaged person who in good faith Yiyin exemption return obligations, the injured people and damaged goodwill between the beneficiary to benefit, can not strike a balance, the provisions of the Civil Code is the first eighty-three good faith transferee who was not entitled to dispose of The extent to avoid obligations to return the negative return of responsibility. "[30] which, as Mr. Wang Zejian, that" the free right to dispose of the case, the grantor is not because of sanctions by the interests of the original owner was not set up properly Lee, no 'apply' the provisions of the Civil Code the first eighty-three room. "[31] but because the interests of the assignee are both free to obtain, with the first two eighty-three regulate the interests of the state of both cases are the same, based on the same legal reasons, should be for the same treatment, therefore, should apply by analogy the provisions of the first eighty-three. [32] deny that the speaker, such as Mr. Shi Shangkuan that no civil law because of Taiwan sixteen a German civil law after the eighth paragraph, can not do anything the same interpretation from . [33]
Continental <<Property Law "> before the implementation of the academic mixed views for this issue. One view is that whether the transferee paid to obtain only get involved if the status of the transferee has the objective to maintain legitimacy, and this is unjust enrichment system function, the content should not by the law of unjust enrichment by the Bona Fide Acquisition Regulation. [34] Another view is that the system of movable property acquired in good faith apply only to transactions, narrowly understood, is not a free transfer deal Moreover, the free transfer of the assignee does not pay to price, does not apply to bona fide acquisition system will not suffer any losses, therefore, made in good faith by the assignee to obtain compensation for personal property rights as a precondition. [35] Another view that, in obtaining property without compensation when the transferee does not happen of course, real estate acquired in good faith application of the system, the owner is entitled to claim for restitution of all things, but to give the assignee with respect to the owner of the first plea for the right person in the ownership no right to dispose of the property according to law enforcement still can not compensate for the loss of the former, have refused to return the property, once the right to dispose of one can compensate for the loss of all, free of charge to obtain ownership of the property to the transferee. [36]
<<Property Law "> second paragraph of Article 106 of the first defined a" sale at reasonable prices "can constitute a bona fide acquisition. So, a" reasonable price "How can I tell? Is generally believed that the so-called reasonable and should be based on market prices to determine, generally should be construed as trading price acceptable to both parties, which is close to market prices. [37] there were scholars that the application made in good faith, in principle, have to actually pay for the elements, if just to reach an agreement can not be deemed to have been acquired in good faith compliance with the constituent elements, or between the assignor and the assignee easily lead to a malicious collusion. [38]
Thus, the assignee should be made in good faith to repay it is free, the key is how the original owners and the trade-off between the assignee in good faith, it all depends on legal policy and value judgments of the conclusions. Solely from the applicable results, the relative Civil Law in Taiwan, mainland China <<Property Law "> on the original owner of the protection seems to be more thoughtful, as the assignee can not obtain free title to the original owner may, based on claim of the right to claim the return of unpaid transferee original, but according to Taiwan's civil law, the original owner can request the assignee to the free return of unjust enrichment claim.
Fourth, the controversy delivery
Mainland China <<Property Law "> Section 106 provides that one of the elements of movable property acquired in good faith of the personal property" has been delivered to the transferee. "However, in addition to reality the concept of delivery and delivery can occur in the simple delivery of movable property is the assignee direct possession of the appearance, change the setting and the delivery of the possession of the two delivery methods can not produce the appearance of the assignee a direct possession of movable property, in addition to the mainland <<Property Law "> section 106 of the" delivery "including the ways in which, not very clear, Therefore, the right to change the citation to be occupied or the delivery of the movable property delivered to the assignee, the assignee of the movable property acquired in good faith whether to become a contentious issue.
On this issue, there are currently three major mainland point of view:
1, affirmed said. To say that, even taken possession of movable property to change the method of setting the delivery system still applies to movable property acquired in good faith. [39]
Mainland China Law Committee of NPC Standing Committee, Hu Kangsheng editor of the <<Property Law Interpretation>> that the Appropriation delivery designated as personal property, the system can be applied to movable property acquired in good faith, that is, the book has taken affirmative, said: "transfer A person selling their bikes and in B of A agreed to continue the lease, and then turn a bike for sale in the C and A for the same contract by the continued use of the bicycle, then C can stand for acquired in good faith it acquired ownership of a bicycle ? Some hold the view that changes be made in good faith can not be applied, that the elements of good faith to obtain the 'delivery' only realistic delivery, and the case of the B and C are placed the same for a trust, should not discriminate. but we believe that the patients in Group C can be acquired in good faith claim for the ownership of a bicycle made for three reasons: first, the constitutional elements of this Law concerning good faith under the 'have been delivered to the assignee' does not exclude the concept of delivery (simple delivery, the delivery of the and Appropriation be) applied, and secondly, if the recognition of B available through Appropriation given way from a place to obtain ownership, then from the non-excluded C in the same way to obtain ownership of the grounds, and finally, for B because of the trust the people to a borne risk, is the result of their choice, in full compliance with the principle of autonomy of private law, and if you want to avoid the risk, B can deliver realistic requirements. and C of a trust is different, C trust is the appearance of a possession of movable property, and Innocent people are protected is the third appearance for the ownership of the trust, so long as C has a bona fide acquisition of the elements, of course, can claim ownership of the bike. "[40]
Clearly, the Law Committee of the above interpretation is problematic. First of all, to the mainland <<Property Law "> on the good faith under the constitutional elements" have been delivered to the assignee, "does not exclude the possession of Unchanged as the reason, methodology lacking. will "deliver" as including possession of the term reclassification, the use of the legal interpretation of the literal interpretation. Although the legal interpretation should be based on literal interpretation first, but when the literal interpretation may be more The interpretation of the results, they should use other methods of interpretation. [41] <<Property Law "> Section 106 provides that" delivery "include possession of reclassification, in the academic community has emerged in opposition's opinion that" delivery "in the context
There is more than one interpretation to explain the results, at this time should use the other interpretation to interpret them, such as the purpose of interpretation, historical interpretation and so on. In addition, the concept of civil law and criminal law is different from civil law can not rule out some cases not expressly finds that this case directly supportive legislators, must be judged from the fact. [42]
Therefore, the law does not exclude in the context given for possession of the ground changed to clarify the attitude of legislators on this issue, do not have the demonstration effect.
Secondly, "<Property Law Interpretation>> provided in the third reason is that B (first assignee) to a trust and C (the second assignee) of a trust is different. In fact, a will be sold with a bicycle has two trust that they have ownership of the assignee of B and C, the two are identical to the A's trust. only when the author of the book has been preset in this example, the premise: a bike to sell B when A is the owner, and sold to C when A has no right to dispose of its people. In this context, B of A's ownership of the trust of course, will never look the same as for C acquired in good faith, so that the two of an assignee of a trust are different. But if the A to B bike sold, its ownership status is not clear, the appearance of B in reliance on the goodwill of its ownership of the purchase, B and C at this time of the trust and the trust of the same .
2, negative said. To say that when the assignee to obtain possession of movable property to change the manner in possession, does not occur for real estate acquired in good faith. This said, the academic for the majority of mainland China and France said. [43] The reasons are: First, the bona fide acquisition system, although to protect the security of transactions, but also take into account the static security.
If the authorized possession of the assignee to change the manner movable property acquired in good faith, denial of rights of indigenous people's rights, rights of indigenous people are too harsh. Because of the assignee to change the manner in possession of movable property the transferee, actually commissioned the grantor holds The movable property, the trust with the real situation is the same human rights, the right to change the unfair treatment at this time is not fair. [44] Second, if change be allowed possession of movable property acquired in good faith, would make possession of unauthorized disposition to change in the method specified in movable disposition after
Continue to further disciplinary actions against movable property, possession of scheduled delivery will be changed abnormally hotbed of change of interest. To prevent this, of course, be denied the delivery time for the possession of movable property acquired in good faith to change the application of the system. [45] Third, Innocent embodies the creation of wealth and goods secure flow of care,
However, the full expansion of the scope of bona fide acquisition of ownership at all times in danger of losing face. Since the moment of facing the risk of ownership, then the most effective way to avoid the danger than to seize the property in their own hands, so they can not reach the full circulation of wealth and goods social ideal. [46]
3, the compromise said. To say that the rights of indigenous people's ownership, possession of personal property continued in the period the grantor has not determined the loss, later if the rights of indigenous people first obtain the actual possession of movable property, the assignee's ownership will come loss, on the contrary, the assignee first obtain the actual possession of movable property, they determine access to ownership and rights of indigenous people will definitely lose its ownership. [47]
4, Type said. To say that it should distinguish between different types and the application of different legal effects. In a single make and when, that is, only the original owner, no action of man and the case of bona fide assignee, should be adopted, surely, In a double alienation, that involves two or more of the bona fide assignee of the situation, said a compromise should be adopted. [48]
Although the share acquired in good faith to change the system setting does not apply the mainland has become the most civil law scholars say, but that the delivery of the acquired in good faith can not be applied, but only a few said. [49] Curiously, many scholars in discussing the applicability of the concept of delivery made in good faith when discussing the delivery of the without setting, or that the reasons mentioned but not discussed, of course, believes that the delivery of the applicable acquired in good faith. [50] The reason is unknown.
On the Appropriation determine whether suitable acquisition in good faith, Taiwan scholars have different views, but certainly that in Taiwan to pass, said Mr. Shi Shangkuan, Mr. Zheng Yubo, Mr. Yang Yuling Dengjun hold a positive opinion, Mr. Xie Zaiquan even before affirming that . [51] It should be noted that the denial that recently in Taiwan began to emerge and gradually dominate. Mr. Xie Zaiquan a change in the past, surely, clearly advocates deny that, saying that "bona fide acquisition system involves real right holders or the original owners and human rights, the interests of the measure between the assignee, the assignee holds rescheduled both the Department of the transferee to possess, the grantor continues to occupy the subject matter, the right people with the real system leaving the possession of the grantor trust of movable property the same, difficult than that of the original assignee of the interests of all those reasons should be protected, such as the competing rights of ownership of real protection, the priority is the value of civil and constitutional order is taken in the interpretation will be excluded Appropriation ... .... "[52] In addition, the 2008 Taiwan Civil Law German Civil Code draft amendment to Article 933 references in Civil Code Section 948 to add the first two, provided by the actual delivery to the transferee in good faith and is limited to the time of delivery, started by Innocent of protection. Therefore, some scholars believe that denying that system in Taiwan Innocent legislative trends. [53] in the future on the mainland <<Property Law "> of the Innocent to explain the process, this trends in real attention.
The applicability of good faith on the delivery of the acquisition, Taiwan, academics have, surely, denied that the type of compromise and said that the four views. At present, certain that the status of living through that. But as Judge Cheng Yu-shan said: "The effect of the impact of acquired in good faith who is outside and relationship to the ownership of the original owners, non-such as ownership and management have the right to make, its effectiveness and achieve world series in the grantor, the two different cases ... ... (Taiwan) share transfer unlimited way, although the Civil Code requirements, then acquired in good faith is the only place to obtain ownership laws were to take effect, and the Department of trust people have no right to obtain possession of the grantor of the basis of comparison, the original owners are losing their property ownership, the objective should be to obtain concrete to show the reality of possession, that is reliable in obtaining the right person out there, the beginning of the original owner can be described as fair. "[54] Thus, in order to change the setting and the delivery of the possession of two delivery transferee of bona fide third people should also be realistic in its delivery and delivery by the limited good, there is the application of acquired in good faith.
II, Innocent exception
Obtained on the good faith exception, Taiwan Civil Code Section 949 provides for the recovery of lost Thieveries claim, the same time, provides for exceptions to the exceptions, that section 950 on the restitution of lost property Thieveries section 951 restrictions, and Pirates lost and stolen the right of reply to the request prohibited. In other words, unpaid transferee of the stolen goods in good faith with the lost property does not apply generally to obtain, within two years the original owner can exercise the right of reply to request special items such as bearer securities and money made in good faith does not apply, however, if the assignee by the market or by auction or public sale of the same thing with the businessmen, who bought in good faith and paid, the original owner to pay the price of non-repayment of its gold, not back its property .
The provisions of Section 949 on the "stolen goods" and explained the academic and practical insights in Taiwan more than that, Pirates of the stolen goods, the Department of the theft, snatch thieves and other acts or things made, from the fraud, or intimidation made by occupation items, are excluded, because of fraud, or intimidation by the occupation of the thing made, although they were all illegal, but the matter of transfer of possession, possession for the transfer of people still line the mean (vertical and its meaning that is defective or not free), and violation of the victim from the possession of meaning and different. [55]
Taiwan Innocent the reason for stolen goods, and lost property as an exception, because the distinction between civil law countries have, in theory, from the physical possession of the entrusted with the possession of the German civil law, Switzerland, China and France, and Japan, China and France because of all the non- mean and out of the stolen goods and possession of lost property, have made exceptions provided in good faith. However, many scholars have questioned Taiwan. Mr. Wang Zejian that "such rules, although there are quite a basis, but failed to implement the the principles of transaction security protection, it seems appropriate non-properly. ... ... real estate acquisition in good faith can not appropriate to set the difference between the subject matter shall be in accordance with the nature of the transaction process. Shen words, where the public market or by auction or merchant in good faith made, regardless of their stolen goods for the Pirates (or Lost) or not, can take ownership of, and vice versa, except in accordance with those obtained by the above process, the non-vertical or lost property stolen is stolen, they can not take ownership. " [56] that Mr. Yao Ruiguang, Taiwan, China and France for the stolen goods with the exception of lost, there is no reason, and illogical. [57]
Links to Free Download Center http://www.hi138.com paper should pay attention to those recently in Taiwan, Department of "Justice," Civil Law Code (Chapter possession) draft amendments of 2008, for possession of property acquired in good faith from the provisions of , made some changes, for example, from the physical possession of the scope is not limited to stolen goods, lost property, but also to expand into other non-person in possession of the original meaning based on the loss of their occupants, for example, said amendment to the ground for lost property, misuse and other extracts that is.
In the mainland <<Property Law "> before the introduction of good faith on whether to distinguish between the subject matter obtained from the physical possession of the entrusted with the possession of different provisions designed, in theory, controversial. Professor Wang Liming and Professor Liang Huixing presided over the two draft proposed draft, are distinguished from the physical possession of the entrusted with the possession of, the provisions of stolen goods acquired in good faith with the lost property does not apply the exception, but also provides for exceptions to the exception. [58] and possession of property from the bona fide acquisition does not apply , has become China's Tong said. [59] However, there is still a distinction between the possession of individual scholars from the possession of the entrusted property and questioned the basis and pointed out: For purposes of bona fide assignee, the people of the possession of the formation of " look right, "there is no difference to everyone, since the" credulous "and loss of property possession, and due to" carelessness "and possession of lost property, it has the" fault "even if the difference is small. Therefore, on the one hand, it should adhere to the transaction security is better than the basic principles of protection of individual rights, personal property acquired in good faith principle is indeed applicable to all real estate transactions have at the same time, it should be distinguished from the possession of the entrusted property and possession, but the distinction purpose is to determine the bona fide assignee should have different standards, not the assignee in good faith to produce different effects on the acquisition of the right. [60]
<<Property Law "> and not clearly defined good faith of stolen goods, but only provided for in section 107 of the good faith of the lost property. [61] does not provide the reason why is because the good faith of stolen goods have been is very difficult, from the mainland before the change of the relevant provisions can be seen.
So far, the mainland acquired in good faith with the stolen goods on several key provisions are:
On December 1 1,1965 Supreme People's Procuratorate and the Ministry of Public Security jointly issued the <"On the confiscation of proceeds of crime and dealing with a number of Interim Provisions>> sixth paragraph:" In handling the case has been verified by criminals to sell out of the stolen goods, as appropriate, recovered. do know that the buyer is buying stolen goods, stolen goods should be free calls, do not know for sure buyers stolen goods, but found the owner, and criminals should be redeemed at the original price will be original or damages, refund the original owners, or compensation for losses by value, if the offender is indeed incapable of or compensation for loss of circumference, according to the specific circumstances of both buyers and sellers for mediation, properly handled. "
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Notes:
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I. Elements of Good Faith
First, the scope
Second, the criteria for determining good faith
Third, whether the assignee should be paid to obtain
Fourth, the controversy delivery
II, Innocent exception
I. Elements of Good Faith
Continental <<Property Law "> Item 1 of Article 106 of the provisions of the Good Faith has four elements: First, the Department makes no right to dispose of, the second, the assignee of the immovable or movable property when the transferee is well-intentioned Thirdly, the transfer of a reasonable price, the fourth, the transfer of real or movable property shall be registered in accordance with the law have been registered, no registration have been delivered to the transferee. Taiwan, "Civil Code" Article 801, Section 948 Good Faith required elements are: first, the subject matter shall be movable property, and second, the grantor must be a person in possession movable property, and the third, the grantor shall be no right to man, the fourth, by the assignee to movable property of the possession, the fifth, the assignee shall in good faith. [1] Elements of comparison from the above can be seen, the main difference between both sides of the application of acquired in good faith and whether the conduct of transactions required to Youchang two, therefore, below will focus on the difference between the two for comparison. Meanwhile, the two sides for the criteria of good and movable property acquired in good faith is not the same delivery requirements, the following also compared these two aspects into the scope.
First, the scope
Continental <<Property Law "> the bona fide acquisition provisions in the title series of the" ownership made special provision "in the chapter, and Taiwan," Civil Code "Property Code, the bona fide acquisition system provides the right of ownership of a chapter," property ownership "of a section and the "possession" in the chapter. from the 801 and section 948 of the context and system point of view, Taiwan's good only for access to the system property.
Bona Fide Acquisition of the continent is not the case. <<Property Law "> Item 1 of Article 106 clearly states:" no right to dispose of real or personal property will transfer to the assignee, the owner the right to recover, unless otherwise provided by law In addition, the following circumstances, the assignee shall acquire ownership of the property or chattel ... .... "So, the mainland's good access to the system not only applies to personal property, but also for real estate. Such practices civil law in the mainland much academic controversial.
In "<Property Law"> before the enactment, Professor Liang Huixing with Professor Wang Liming, presided over the drafting of the Draft of the two views on this issue is inconsistent. Professor Liang Huixing sponsored draft of the provisions made in good faith applies only to personal property system, [2 ] because of the characteristics from the real point of view, to register for the publicity because of its method of share trading on the Buzhi Yu mistake all people, so it is excluded from the acquisition in good faith the system. [3] and chaired by Professor Wang Liming, The Draft acquired in good faith in the system not to limit the application of movable property, and its Article 78 also stipulates that "in good faith and trust in the registration of real property register, and with the registered person has the right to record transactions, and thus obtain the right to ownership of real estate or other , and mutatis mutandis the provisions of movable property acquired in good faith. "[4], Professor Wang Liming, chaired by the provisions of the reasons for such a proposal is issued [5]: First of all, since the result of a registered real estate transactions will be errors, omissions, and other reasons are not registered has no right place action problems, then there is also the third person informed the question of whether the goodwill of the problem. Second, from the national legislation of view, most also apply to real property acquired in good faith recognition system, such as Germany <<Civil Code>> Article 926, Article 973 Swiss Civil Code. In addition to experts, chaired by Professor Wang Liming, draft proposed system to support real property acquired in good faith, there are other scholars agree with this statement in the article, made in good faith that the real property registration system and the credibility of the system is different The third reason why people can enjoy the protection of credibility, because it as good, therefore, to achieve credibility Baohu bona fide third parties, it must have bona fide Acquisition System. [6], but most scholars believe that the applicable scope should be made in good faith limited to the property. [7]
Bona fide acquisition of real estate registration system is the credibility with the principles to achieve the purpose of maintaining transaction security, which adopted the principle to maintain the credibility of the possession of movable property acquired in good faith transaction security system, the difference is obvious. Thus, a complete real estate has been established rights registration system in countries and regions, in addition to illegal construction and a handful of real estate registration have not been saved, there are permitted to discuss real property from personal property acquired in good faith whether the system is necessary, but for other situations, no beneficial to discuss this issue . [8] So, why <<Property Law "> the traditional system for movable property acquired in good faith?
The approval from the legislature a number of books, we can ascertain to <<Property Law "> adopt certain real property acquired in good faith that the reasons: First, real estate acquired in good faith exists, because the credibility of the possession of real property still needs to be recognized. China Mainland China's real estate registration system has not been perfect, "rural real estate, especially in the private houses of farmers and their land use right registration of not more prevalent, ... ... should be considered a bona fide acquisition allows a permitted, so good by people to judge the person in possession under the real estate housing property ownership. "[9] not and will not recognize the credibility of the principle of possession, not in line with national conditions. Second, if the registration error, the parties in good faith, never dispose people to buy the Housing and register transfer, the transferee shall obtain home ownership in good faith. [10] Clearly, the legislature that the real property acquired in good faith on one hand is the credibility of the transaction for the trust in the goodwill of possession of a third person, on the one hand is the registration error for the trust bona fide third real estate transaction, while the second is what the buyer in good faith registration on the credibility of the traditional civil law to protect the object. Based on the current rural estate of the mainland's national conditions generally are not registered on the first bona fide third special provisions for the protection of property acquired in good faith the system is still reasonable, but, in the "<Property Law"> the provisions of Article 16 has been registered under the premise of credibility, the need for a second bona fide third parties acquired in good faith and then be the estate system, there is a substantial question.
Many mainland scholars of civil law scholars to discuss real property acquired in good faith in the system, actually registered real property acquired in good faith and credibility of mixed together. Although the purpose of the two systems are reliable error protection of bona fide third party registration, but was different scholars crown discussed a different name. mainland judicial practice, there are many courts use the so-called "theory of real property acquired in good faith" handling of cases, the underlying reason is that mainland China's lack of current real estate registration system. On the one hand, while existing legislation mainland For real estate transactions on the register as force elements, but in the "<Property Law"> is not established before the implementation of the credibility of real estate registration, so that the court can only be achieved through good theory to protect those who trust in the bona fide third real estate registration, and the other On the one hand, the registration authority does not unified, long registration, so that in practice often the register a registration authority can not be true and complete reflection of the property rights on the situation of great harm for the security of transactions, the urgent need to obtain the help of good theory to remedy them. [11] acquired in good faith if the real property registration system and the credibility of the system content is the same, the two conclusions are consistent with value judgments, registered in the law has established the credibility of the premise, whether to be the estate Innocent does not affect the interests between the parties, but merely a legislative technology. [12] "appropriate legislative technique, should be followed 'legislation aesthetic', as concise, convenient, and avoid duplication of legal rules, cumbersome legislation technology. "[13] In this regard, the mainland Tsinghua University Law School Professor Cheng Xiaofu said that if property rights in the mainland legal system is not perfect, when, with good access to the system to compensate for the lack of credibility of real estate registration and the negative effects, can still understand the words, then, in our <<Property Law "> has clearly defined the credibility of real estate registration system, when put forward any real property acquired in good faith go like the theory not only makes no sense, but will for the future of real estate registration System and security of transactions have very adverse consequences. [14] However, based on the goodwill generated to obtain possession of the credibility of the system, the registration system is not perfect for private houses in rural areas there is still room for. [15]
Second, the criteria for determining good faith
Acquired in good faith the core of the system is "good" word, then, is the third person to determine how well-intentioned?
On Taiwan, "Civil Code" Article 801 "goodwill" of the content of what scholars generally believe that the so-called "good" means I do not know no ownership or disposition of the grantor, the grantor is in good faith and has nothing to do. The problem is that good is it necessary to no-fault is it necessary? General say that the scholars in Taiwan, from the literal interpretation of good faith is not know or unknown, whether for negligence and I do not know, this should not be considered, however, is the measure of good faith transferee system taking into account the interests of all legislation and transaction security purposes, such as by the objective situation, the trading experience, the average person can be identified to whom the grantor the right to free persons, shall be deemed a third party in bad faith. [16] Thus, Tong said that the good faith consideration of the no-fault, but still do not know the third person investigation of ordinary people to judge whether, in fact, consider the third issue of fault. Therefore, some scholars have argued that patients should refer to the German legislation, will interpreted in good faith shall not knowingly or due to gross negligence and did not know the grantor and the right not to. [17] Taiwan, "Ministry of Justice" in the proposed "Civil Code" the draft amendment is also adopted this view: "I do not know to the assignee and No one to whom the right was due to a major fault, with its own negligence, should be expressly excluded from the scope of protection other than to maintain the security of the original ownership of the static, this not only for scholars, Stone said, nine hundred and thirtieth German civil law The second has to do the same two provisions, "[18] Accordingly, the Taiwan" Ministry of Justice, "Civil Law Civil Code draft amendments to the ninth forty-eight at first, but added the proviso:" But knowing that the transferee or due to gross negligence and did not know to whom no right of the grantor, unless. "
Judgments about the good time, Taiwan scholars believe that the transferee when the transferee in good faith is enough, after the transferee is not entitled to dispose of knowing things, still apply to bona fide acquisition. [19] Specifically, in the real delivery, when delivery is good, the simple delivery, and the agreement is so good when, in the direct delivery is the right to request the assignee to obtain the return of good faith. [20]
Mainland China <<Property Law "> before the promulgation of good faith to achieve a system of justice in the mainland narrow the scope of practice, legislative requirements on the lack of system, but movable property acquired in good faith for the system of academic research is not lacking. Made in good faith on the movable "goodwill" of the criteria, in theory, the "positive idea that" and "negative perceptions that" parts, the former require the assignee must be regarded as everyone's idea of the transfer, which also requires the assignee did not know people should know that no right of people to transfer. mainland Stone said that the negative attitudes that should be adopted. [21], chaired by Professor Wang Liming, Draft of 75 and Professor Liang Huixing chaired draft of Article 145 also provides criteria for judging good faith, that "I do not know when the assignee transferee transferor no right to dispose of movable and without gross negligence, for the good." [22] Therefore, the draft will be adopted for the two "negative concept" to determine whether the parties as good, while only "knowledge" does not necessarily constitute a good faith, must also be a result of gross negligence and did not know right and wrong. for negligence judgments, objective criteria should be adopted, that the general standard, with the objective situation and, by virtue of transaction experience can be made to determine whether or not the basis as a measure of goodwill. [23] such a criterion of good, has become academic links say, and Taiwan on the "goodwill" of the criteria, basically the same.
<<Property Law "> after the implementation of real property acquired in good faith in" good faith "how to judge, has become an important issue.
Some scholars believe that the real estate registration have the support of national reputation, with a very high credibility, and credibility of different plays, so, real estate acquired in good faith "goodwill" and personal property acquired in good faith to determine the standard of "good faith" criterion is different from a , the real property acquired in good faith with the unity of the good criteria, namely, the registration as long as the third party trust is presumed to be good, unless he knows the registration error, without judgments, as chattel, as buyers in good faith to consider the transaction environmental factors, and need not adopt the general criteria to judge people's good or not. [24] On the other hand, the third party access to the register must be implemented positive behavior, the rights recorded on the register had a reasonable trust conditions. If the third party inspection lazy, then it does not constitute a presumption of good faith. [25] However, some academics have suggested a different opinion, that the third person from the Register of active Search are good, but the third did not inspect the register book, that the transaction object has been recorded in the register book, this is true right right, this state is also good. because the registration is an objective fact, legitimate stakeholders in the freedom and convenience to access the case of the register, the registration with the publicity of natural sex, because if someone does not lose access to the basic functions of publicity. Therefore, I do not know if the third party the right to registration rights is not true, constitute good, I do not know whether the reasons for negligence, in the do not ask. [26] However, if proves the error recorded in the third person who knowingly register or disagree in the Register of registration records, and can be excluded from the presumption of good faith third party. [27]
As mainland China <<Property Law "> real estate acquired in good faith the provisions of the system is actually based on the credibility of real estate registration established system of protection of bona fide third party and, therefore, Taiwan, 1 of the Civil Code Article 759 provided for the credibility of a real estate registration comparable between. Taiwan, one of the provisions of Civil Code Article fifty-nine: "�� real property by the registration, the registration rights of presumption of legality of people have this right. �� in good faith in reliance on registration of real estate of a third person, in accordance with legal acts have been registered for the property changes, their effect changes, not because of the original registration of the property affected by the false. "Tong said that in Taiwan, of which the so-called" goodwill "refers to the false registration of title I do not know whether with gross negligence and I do not know do not ask, movable property and civil ninth forty-eight goodwill acquired in good faith means different things. In addition, based on reliable registration of the fact that the registration has been presumed to be true, usually those who do not know the trust shall be considered as not true, therefore, should be subject to presumption of good faith, with or without access to registration also do not ask. [28] Thus, Taiwan, the credibility of real estate's "good faith" interpretation of the majority of scholars said the mainland is different.
Third, whether the assignee should be paid to obtain
Transferee from the transferor through the transactions obtain the property, should we get paid?
Taiwan, "Civil Code" elements on the Good Faith does not require the assignee to obtain compensation system, but made the case for free, how should the balance between the original owners and the interests of the assignee, quite controversial. To address this questions, Germany <<Civil Code>> Section 1 of Article 816, paragraph 2, free of charge as a result of the assignee no right to dispose of the act, directly benefit people who received the law, the owner shall assume the obligations of the return of unjust enrichment . but Taiwan does not have this requirement of civil law, then the original owner if the assignee for the unpaid claim of unjust enrichment? this, scholars in Taiwan and denying that there are certain that the two views. certain that the person, such as Mei Chung Association President, Mr. Zheng Yubo, Mr. Wang Zejian, Mr. Sun Senyan, but certainly that, again, stand directly applicable to civil law first eighty-three [29] regulations, but also advocated by analogy to the first eighty-three provided. The former, such as Mr. Sun Senyan that "If the free and the transferee, with the right action is not occurring between the unjust enrichment issue, cover the affected interests, and no right to dispose of human behavior have free legal reasons exist. but if the implementation of this principle, if no right to dispose of the damaged person who in good faith Yiyin exemption return obligations, the injured people and damaged goodwill between the beneficiary to benefit, can not strike a balance, the provisions of the Civil Code is the first eighty-three good faith transferee who was not entitled to dispose of The extent to avoid obligations to return the negative return of responsibility. "[30] which, as Mr. Wang Zejian, that" the free right to dispose of the case, the grantor is not because of sanctions by the interests of the original owner was not set up properly Lee, no 'apply' the provisions of the Civil Code the first eighty-three room. "[31] but because the interests of the assignee are both free to obtain, with the first two eighty-three regulate the interests of the state of both cases are the same, based on the same legal reasons, should be for the same treatment, therefore, should apply by analogy the provisions of the first eighty-three. [32] deny that the speaker, such as Mr. Shi Shangkuan that no civil law because of Taiwan sixteen a German civil law after the eighth paragraph, can not do anything the same interpretation from . [33]
Continental <<Property Law "> before the implementation of the academic mixed views for this issue. One view is that whether the transferee paid to obtain only get involved if the status of the transferee has the objective to maintain legitimacy, and this is unjust enrichment system function, the content should not by the law of unjust enrichment by the Bona Fide Acquisition Regulation. [34] Another view is that the system of movable property acquired in good faith apply only to transactions, narrowly understood, is not a free transfer deal Moreover, the free transfer of the assignee does not pay to price, does not apply to bona fide acquisition system will not suffer any losses, therefore, made in good faith by the assignee to obtain compensation for personal property rights as a precondition. [35] Another view that, in obtaining property without compensation when the transferee does not happen of course, real estate acquired in good faith application of the system, the owner is entitled to claim for restitution of all things, but to give the assignee with respect to the owner of the first plea for the right person in the ownership no right to dispose of the property according to law enforcement still can not compensate for the loss of the former, have refused to return the property, once the right to dispose of one can compensate for the loss of all, free of charge to obtain ownership of the property to the transferee. [36]
<<Property Law "> second paragraph of Article 106 of the first defined a" sale at reasonable prices "can constitute a bona fide acquisition. So, a" reasonable price "How can I tell? Is generally believed that the so-called reasonable and should be based on market prices to determine, generally should be construed as trading price acceptable to both parties, which is close to market prices. [37] there were scholars that the application made in good faith, in principle, have to actually pay for the elements, if just to reach an agreement can not be deemed to have been acquired in good faith compliance with the constituent elements, or between the assignor and the assignee easily lead to a malicious collusion. [38]
Thus, the assignee should be made in good faith to repay it is free, the key is how the original owners and the trade-off between the assignee in good faith, it all depends on legal policy and value judgments of the conclusions. Solely from the applicable results, the relative Civil Law in Taiwan, mainland China <<Property Law "> on the original owner of the protection seems to be more thoughtful, as the assignee can not obtain free title to the original owner may, based on claim of the right to claim the return of unpaid transferee original, but according to Taiwan's civil law, the original owner can request the assignee to the free return of unjust enrichment claim.
Fourth, the controversy delivery
Mainland China <<Property Law "> Section 106 provides that one of the elements of movable property acquired in good faith of the personal property" has been delivered to the transferee. "However, in addition to reality the concept of delivery and delivery can occur in the simple delivery of movable property is the assignee direct possession of the appearance, change the setting and the delivery of the possession of the two delivery methods can not produce the appearance of the assignee a direct possession of movable property, in addition to the mainland <<Property Law "> section 106 of the" delivery "including the ways in which, not very clear, Therefore, the right to change the citation to be occupied or the delivery of the movable property delivered to the assignee, the assignee of the movable property acquired in good faith whether to become a contentious issue.
On this issue, there are currently three major mainland point of view:
1, affirmed said. To say that, even taken possession of movable property to change the method of setting the delivery system still applies to movable property acquired in good faith. [39]
Mainland China Law Committee of NPC Standing Committee, Hu Kangsheng editor of the <<Property Law Interpretation>> that the Appropriation delivery designated as personal property, the system can be applied to movable property acquired in good faith, that is, the book has taken affirmative, said: "transfer A person selling their bikes and in B of A agreed to continue the lease, and then turn a bike for sale in the C and A for the same contract by the continued use of the bicycle, then C can stand for acquired in good faith it acquired ownership of a bicycle ? Some hold the view that changes be made in good faith can not be applied, that the elements of good faith to obtain the 'delivery' only realistic delivery, and the case of the B and C are placed the same for a trust, should not discriminate. but we believe that the patients in Group C can be acquired in good faith claim for the ownership of a bicycle made for three reasons: first, the constitutional elements of this Law concerning good faith under the 'have been delivered to the assignee' does not exclude the concept of delivery (simple delivery, the delivery of the and Appropriation be) applied, and secondly, if the recognition of B available through Appropriation given way from a place to obtain ownership, then from the non-excluded C in the same way to obtain ownership of the grounds, and finally, for B because of the trust the people to a borne risk, is the result of their choice, in full compliance with the principle of autonomy of private law, and if you want to avoid the risk, B can deliver realistic requirements. and C of a trust is different, C trust is the appearance of a possession of movable property, and Innocent people are protected is the third appearance for the ownership of the trust, so long as C has a bona fide acquisition of the elements, of course, can claim ownership of the bike. "[40]
Clearly, the Law Committee of the above interpretation is problematic. First of all, to the mainland <<Property Law "> on the good faith under the constitutional elements" have been delivered to the assignee, "does not exclude the possession of Unchanged as the reason, methodology lacking. will "deliver" as including possession of the term reclassification, the use of the legal interpretation of the literal interpretation. Although the legal interpretation should be based on literal interpretation first, but when the literal interpretation may be more The interpretation of the results, they should use other methods of interpretation. [41] <<Property Law "> Section 106 provides that" delivery "include possession of reclassification, in the academic community has emerged in opposition's opinion that" delivery "in the context
There is more than one interpretation to explain the results, at this time should use the other interpretation to interpret them, such as the purpose of interpretation, historical interpretation and so on. In addition, the concept of civil law and criminal law is different from civil law can not rule out some cases not expressly finds that this case directly supportive legislators, must be judged from the fact. [42]
Therefore, the law does not exclude in the context given for possession of the ground changed to clarify the attitude of legislators on this issue, do not have the demonstration effect.
Secondly, "<Property Law Interpretation>> provided in the third reason is that B (first assignee) to a trust and C (the second assignee) of a trust is different. In fact, a will be sold with a bicycle has two trust that they have ownership of the assignee of B and C, the two are identical to the A's trust. only when the author of the book has been preset in this example, the premise: a bike to sell B when A is the owner, and sold to C when A has no right to dispose of its people. In this context, B of A's ownership of the trust of course, will never look the same as for C acquired in good faith, so that the two of an assignee of a trust are different. But if the A to B bike sold, its ownership status is not clear, the appearance of B in reliance on the goodwill of its ownership of the purchase, B and C at this time of the trust and the trust of the same .
2, negative said. To say that when the assignee to obtain possession of movable property to change the manner in possession, does not occur for real estate acquired in good faith. This said, the academic for the majority of mainland China and France said. [43] The reasons are: First, the bona fide acquisition system, although to protect the security of transactions, but also take into account the static security.
If the authorized possession of the assignee to change the manner movable property acquired in good faith, denial of rights of indigenous people's rights, rights of indigenous people are too harsh. Because of the assignee to change the manner in possession of movable property the transferee, actually commissioned the grantor holds The movable property, the trust with the real situation is the same human rights, the right to change the unfair treatment at this time is not fair. [44] Second, if change be allowed possession of movable property acquired in good faith, would make possession of unauthorized disposition to change in the method specified in movable disposition after
Continue to further disciplinary actions against movable property, possession of scheduled delivery will be changed abnormally hotbed of change of interest. To prevent this, of course, be denied the delivery time for the possession of movable property acquired in good faith to change the application of the system. [45] Third, Innocent embodies the creation of wealth and goods secure flow of care,
However, the full expansion of the scope of bona fide acquisition of ownership at all times in danger of losing face. Since the moment of facing the risk of ownership, then the most effective way to avoid the danger than to seize the property in their own hands, so they can not reach the full circulation of wealth and goods social ideal. [46]
3, the compromise said. To say that the rights of indigenous people's ownership, possession of personal property continued in the period the grantor has not determined the loss, later if the rights of indigenous people first obtain the actual possession of movable property, the assignee's ownership will come loss, on the contrary, the assignee first obtain the actual possession of movable property, they determine access to ownership and rights of indigenous people will definitely lose its ownership. [47]
4, Type said. To say that it should distinguish between different types and the application of different legal effects. In a single make and when, that is, only the original owner, no action of man and the case of bona fide assignee, should be adopted, surely, In a double alienation, that involves two or more of the bona fide assignee of the situation, said a compromise should be adopted. [48]
Although the share acquired in good faith to change the system setting does not apply the mainland has become the most civil law scholars say, but that the delivery of the acquired in good faith can not be applied, but only a few said. [49] Curiously, many scholars in discussing the applicability of the concept of delivery made in good faith when discussing the delivery of the without setting, or that the reasons mentioned but not discussed, of course, believes that the delivery of the applicable acquired in good faith. [50] The reason is unknown.
On the Appropriation determine whether suitable acquisition in good faith, Taiwan scholars have different views, but certainly that in Taiwan to pass, said Mr. Shi Shangkuan, Mr. Zheng Yubo, Mr. Yang Yuling Dengjun hold a positive opinion, Mr. Xie Zaiquan even before affirming that . [51] It should be noted that the denial that recently in Taiwan began to emerge and gradually dominate. Mr. Xie Zaiquan a change in the past, surely, clearly advocates deny that, saying that "bona fide acquisition system involves real right holders or the original owners and human rights, the interests of the measure between the assignee, the assignee holds rescheduled both the Department of the transferee to possess, the grantor continues to occupy the subject matter, the right people with the real system leaving the possession of the grantor trust of movable property the same, difficult than that of the original assignee of the interests of all those reasons should be protected, such as the competing rights of ownership of real protection, the priority is the value of civil and constitutional order is taken in the interpretation will be excluded Appropriation ... .... "[52] In addition, the 2008 Taiwan Civil Law German Civil Code draft amendment to Article 933 references in Civil Code Section 948 to add the first two, provided by the actual delivery to the transferee in good faith and is limited to the time of delivery, started by Innocent of protection. Therefore, some scholars believe that denying that system in Taiwan Innocent legislative trends. [53] in the future on the mainland <<Property Law "> of the Innocent to explain the process, this trends in real attention.
The applicability of good faith on the delivery of the acquisition, Taiwan, academics have, surely, denied that the type of compromise and said that the four views. At present, certain that the status of living through that. But as Judge Cheng Yu-shan said: "The effect of the impact of acquired in good faith who is outside and relationship to the ownership of the original owners, non-such as ownership and management have the right to make, its effectiveness and achieve world series in the grantor, the two different cases ... ... (Taiwan) share transfer unlimited way, although the Civil Code requirements, then acquired in good faith is the only place to obtain ownership laws were to take effect, and the Department of trust people have no right to obtain possession of the grantor of the basis of comparison, the original owners are losing their property ownership, the objective should be to obtain concrete to show the reality of possession, that is reliable in obtaining the right person out there, the beginning of the original owner can be described as fair. "[54] Thus, in order to change the setting and the delivery of the possession of two delivery transferee of bona fide third people should also be realistic in its delivery and delivery by the limited good, there is the application of acquired in good faith.
II, Innocent exception
Obtained on the good faith exception, Taiwan Civil Code Section 949 provides for the recovery of lost Thieveries claim, the same time, provides for exceptions to the exceptions, that section 950 on the restitution of lost property Thieveries section 951 restrictions, and Pirates lost and stolen the right of reply to the request prohibited. In other words, unpaid transferee of the stolen goods in good faith with the lost property does not apply generally to obtain, within two years the original owner can exercise the right of reply to request special items such as bearer securities and money made in good faith does not apply, however, if the assignee by the market or by auction or public sale of the same thing with the businessmen, who bought in good faith and paid, the original owner to pay the price of non-repayment of its gold, not back its property .
The provisions of Section 949 on the "stolen goods" and explained the academic and practical insights in Taiwan more than that, Pirates of the stolen goods, the Department of the theft, snatch thieves and other acts or things made, from the fraud, or intimidation made by occupation items, are excluded, because of fraud, or intimidation by the occupation of the thing made, although they were all illegal, but the matter of transfer of possession, possession for the transfer of people still line the mean (vertical and its meaning that is defective or not free), and violation of the victim from the possession of meaning and different. [55]
Taiwan Innocent the reason for stolen goods, and lost property as an exception, because the distinction between civil law countries have, in theory, from the physical possession of the entrusted with the possession of the German civil law, Switzerland, China and France, and Japan, China and France because of all the non- mean and out of the stolen goods and possession of lost property, have made exceptions provided in good faith. However, many scholars have questioned Taiwan. Mr. Wang Zejian that "such rules, although there are quite a basis, but failed to implement the the principles of transaction security protection, it seems appropriate non-properly. ... ... real estate acquisition in good faith can not appropriate to set the difference between the subject matter shall be in accordance with the nature of the transaction process. Shen words, where the public market or by auction or merchant in good faith made, regardless of their stolen goods for the Pirates (or Lost) or not, can take ownership of, and vice versa, except in accordance with those obtained by the above process, the non-vertical or lost property stolen is stolen, they can not take ownership. " [56] that Mr. Yao Ruiguang, Taiwan, China and France for the stolen goods with the exception of lost, there is no reason, and illogical. [57]
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