Theory of Property Act - Analysis of Legislative Choice of Ideal

Abstract: Real property behavioral theory is that the German legislature adopted a change in property rights theory of property rights legislation should also consider the issue. In this paper, selection of the Real Property Council, based on management point of view of the students never the value of a Theory of Property Act and the reasonableness of property legislation in China also demonstrates the necessary choice in order to owl Property Legislation in China benefit.

Paper Keywords: Real Rights of independence
Theory of Property Act originated in Germany, is a legislative model property changes, some of China's legislature adopted the property theory. Real Right Law faces the choice of model property changes, so the property act theory is necessary to formulate a scientific discussion of property Law problem. on this issue made a more thorough study circles, forming a clear distinction of the two views, or negate, or fully sure. Our Property legislation did not fully adopted the theory of Property Act, which adopted the Property Act only indirectly independent nature of the property without Cause not adopted. Now, "<Property Law"> Although the development, but the academic discussion on the theory of Property Act has not stopped. This is not the students through a variety of property management behavior theory perspective, from the be However, whether the overall level of adoption of proposed property rights of action theory.

First, the issues
Property Act originated in Roman Law system, it is in this context, the German scholar Savigny behavior theory proposed property, and made a more detailed explanation. Property Act system of early Roman Law already exists, For example, the delivery requirements of the Roman Law a pArty means to transfer ownership, the transfer of objects in the other pArty in order to transfer ownership. Savigny is in summary and interpretation of Roman law system based on the theory of the creation of Property Act, and German Law of Civil Law system and even the Civil law theory of property law in a significant impact, which of course China. Savigny Property Act Theory has the following meaning: first, the principle of distinction, also known as the independence of Property Act, which Real acts of behavior and claims the separation of behavior independent of the claims, the second, the abstract principle, also known as Real Rights, that is property of their effectiveness and outcomes of behavior does not depend on the behavior of the reason (claims actions) independent establishment, because behavior is not necessarily invalid or lead to revocation of the discharge behavior of matter, of course null and void and revoked, and the third, formalism principle that property rights and registration act to deliver elements of their entry into force, the changes must be real property registration, transfer of movable property must be the change in possession of objects. which can be inferred, Real Property behavior is acceptable behavior with a combination of delivery or registration. The so-called property rights agreement, based on property acquisition, loss and change purpose of the dispute. with this agreement, in principle, made of real right does not, of course, the practical effect of the loss and change, the desired property in itself, can not be said for the property acts. only desirable property of combining with the registration or before the delivery can be the establishment of Property Act. is precisely this characteristic behavior based on property rights, property rights acts to be independent from credit behavior, Real Rights is also to be proposed.

Whether to adopt the theory of Property Act is the development of property law can not avoid the issue, but also changes in patterns of property rights scholars to discuss. In "<Property Law"> during the development, academics made a more comprehensive discussion of this. Scholars have The concept of Property Act, composition and origin of basically the same point of view, the focus of debate is whether to recognize the real right of action theory, supporters and opposition caught a lot of people, and most scholars who totally reject the comments. I believe that our In consideration of property law on the basis of various factors, the adoption of the independence of Property Act, did not adopt the property without Cause. Real Rights and interests of the seller protection is not enough, but there must exist as an institution value in the property system, not because it has drawbacks for unworthy of its total negation. In "<Property Law"> has developed an environment, behavioral theory of property rights and Reality from the point of view ought to be some analysis, from the property management point of argument is not students without Cause and reasonable value, re-positioning of Real Rights and the significance of the system is bound to be inspired by Improvement of property. In summary, our property rights legislation should be fully adopted Theory of Property Act.

Second, the problem of
Property Act on the theory, scholars divided the main point is that in terms of property without Cause. Conducive to the principle of distinction between specific claims and property law scholars, the dispute is not large, the principle of formalism is the property requirements of Public Credit, scholars This controversy is not great. abstract principles of the Real Rights and protection of the interests of the seller is not enough, many scholars have been negated. this section, the author never tried to students behavior management theory perspective of property rights, especially property without Cause, in order to clarify the property rights theory from behavioral, to open the way to perfecting property law.


(A) of the property from the academic interpretations of behavior theory
Scholars on the divergence theory of Property Act, there are two views. First negative theory, one must say.

Denied, said that: 1. Theory of Property Act cause of human behavior and the results of separate acts of the necessary connection, entirely man-made fiction, contrary to common sense of life 2. Prejudice the fair trading act theory property. To contract for the sale, for example, the seller is out of the subject matter of the transfer of ownership of real estate registration or during the delivery of movable property, if the contract is invalid or revoked, according to Real Rights sex, of course, the buyer to obtain title to property, the seller can only enjoy the right to request the return of unjust enrichment, rather than claim for restitution, it is unfair to the seller, the seller acquired the right to defend their the legitimate interests of .3. Property Act is too abstruse theory, contrary to common sense or the transaction practices transactions to a simple contract into multiple contracts, the public can not accept, the general jurists difficult to understand.

Sure that that: 1. Property means that the independent discovery, enrichment and development of the legal acts of the content, so the final rounded development of legal relations theory, 2. Theory of Property Act the principle of distinction, revealing the claims can not of course mean that the basic legal property changes occur, changes in property rights for the Property Law provides the theoretical foundation system, which is derived from social life, but not completely fiction, 3. Real Rights of solving the Property Law and the distinction between creditor law, constitute the basis of the Civil law system, the Civil law system more clear and rational logic, 4. Fully protect the interests of pArties to the transaction and transaction security. According to property without Cause, claims the contract is revoked or declared invalid, does not affect the validity of Property Act, the pArties can still obtain ownership of property. When the transfer of the subject matter third person, it is the right action, third person can obtain ownership of the subject matter, which interests of the pArties and transaction security protection is beneficial. not because of too much emphasis on avoiding the expense of the interests of the seller to buy the interests protected by the disadvantages, on the whole a better balance between the interests of the parties .5. Theory of Property Act is not mysterious, its contents can understand. As a people, their behavior can not understand the theory of property, it does not mean it will be able to understand the system or the claims made in good faith the theories of relativity, the legislature is not being required to be To understand every legal system, as a jurist, must have some legal thinking and understanding of property act theory should be granted.

I believe that today's society more than the circulation of commodities for the bulk of cross-time trading, the independence of Property Act claims in favor distinction between legal relations and property laws so that more comprehensive and clear legal relationship, it should be adopted. Property sold without Cause on inadequate protection of the interests, but also may result in protection against malicious third person can be applied in combination with other systems, on this point I will detail later.

(B) from Institutional Economics Theory of Property Act
From the perspective of institutional Economics, Real Rights Theory and the conflict between the existing system, such conflicts need to rely on the value of options to eliminate, Real Rights and is also the result is the value choice. Each systems are rooted in certain social soil, grew up in a certain system environment, each system will be subject to the arrangements of traditional culture, social and psychological impact of the deep structure. the system can be divided into the formal system and informal institutions, formal system is generated through the mechanisms of organic organization and implementation of the system, informal system is an extension of the formal system, is the socially accepted rules of conduct, including the values ​​and beliefs, ethics and other factors, both for the selection and operation of the system has great effects. Based on this, some scholars have analyzed from the perspective of institutional Economics property without Cause, and make a negative conclusion. the view that from the domestic formal system analysis, changes in patterns of property claims to the formalism of the first three have been acquired in good faith the protection system and Public Credit system, there is no need to introduce property rights theory formalism of Property Act, or will result in legislative model formalism and the claims of conflict, from the informal system of internal analysis, Real Rights due to inadequate protection of the interests of the seller, and in a malicious third party can achieve things when the ownership of the people psychologically for this point is difficult to understand. property without Cause and the existence of conflicts between the existing system , but this is inevitable, a new legal system is bound to be adopted with the old system integration process. Meanwhile, the laws of property right itself is not perfect, there are many contradictions, but also in the continuous development in the conflict. A kinds of systems, there exists its value, not just to totally negate its imperfections, often through the system that is perfect balance and the value of options to make up. In addition, the law is not a random arrangement, it must be subject to the existence of the social and Economic infrastructure, and work to further develop services, protection of the interests of the seller or the protection of the interests of a third person, this is a legal policy. seller interests and the interests of a third party property interests represent the static and dynamic properties flow benefits. legal policy choices on transaction security protection is the legal system of market economy requirements, legal rights in order to form synergies rather than confrontation between the rights, restrictions on individual rights is necessary, it is based on Real Rights because of, discard the interests of the seller's static and instead chosen to protect the interests of a third party represented by the dynamic transaction security interests, is the system of conflict and value selection.

In my opinion, from the institutional Economics perspective, Real Rights of the legal system in China caused confusion, while property without Cause and the requirements of the market economy, it is necessary to seriously consider the legal system. Markets existence of their own risk can not be attributed to property without cause, and the property interests and static compared to the value of the flow of things more important, protecting the interests of the seller is not the main task of the market economy. people may not accept the property in the psychological without Cause, but the legislation is legislation, it is to balance the interests of all sides, not just protecting the interests of a particular subject. property without Cause It balances the interests of all parties was only to be applied.

(C) and the Innocent from the Comparative Analysis of Property Act Theory
System and property rights acquired in good faith without Cause all conducive to a certain extent, protect the interests of third parties, so the scholars would often system and property rights acquired in good faith without Cause for comparison, thereby negating the Real Rights of the transaction security role, and then denied the property's value without Cause, I think this is debatable.

System and property rights acquired in good faith without Cause will help protect both the interests of a third party. Goodwill is no right to dispose of property of another person in possession, in accordance with the law after the transfer of property to a third person, in acquiring the property if the transferee When well-intentioned, can be legally obtained ownership of the property, we can see, good access to the system will help protect the interests of a third person. Real Rights and to some extent, sexual conducive to fully protect the interests of parties to the transaction and transaction security . If the contract is declared invalid or debt cancellation does not affect the effectiveness of Property Act, the buyer still get ownership of the subject matter of their transfer to a third person, third person can obtain ownership of the subject matter, which the interests of the parties and transaction security protection is beneficial. shows that the two systems are conducive to protection of third party interests.

Real Rights of the advantages and disadvantages and the Innocent. Innocent in "good faith" is difficult to determine the burden of proof also increased the responsibility of good faith is also achieved because of good behavior is a fact that can not be revoked, it its not a good protection of bona fide third party's interests. Real Rights and inadequate protection of the interests of the seller, but the protection of bona fide third parties acquired in good faith of the heart is not "good", but the property publicity based on the objective "good faith", the third person on the registration of real estate and movable property whether or not the possession of knowledge as its "goodwill" of the set standards, thus providing a clear and objective criteria to determine well-intentioned, beneficial operation. Meanwhile, the phase static than in the seller's property interests, the interests of third dynamic property protection is particularly important, Real Rights of the dynamic property is the protection of the interests of its foundation and existence of a certain value. Links to free Download Center http://www.hi138.com paper system and property rights acquired in good faith act theory are two different systems. Some scholars believe that, taken in good faith to achieve a system can well protect the security of transactions, without the adoption of Real Rights by theory, and some scholars believe that the theory of property without Cause already contains a bona fide acquisition. In fact, the two systems are different. Innocent mainly in the right to dispose of the case. Property Act non-sexual behavior of the system is mainly used in the claims invalid or the case has been revoked. in the application of behavior theory in the case of property, creditor behavior is invalid, Property Act is effective. This is the biggest and the Innocent difference . Of course, the validity of Property Act and the effectiveness of creditor behavior is consistent in some cases, the Property Act may also be because of fraud, coercion or other violation of mandatory provisions of the law ineffective. In short, the Good Faith system and the Real Rights and to solve different problems of the theory of the legal system. Innocent right action in the field, to protect the transaction without having to disposition relative effectiveness of the pain to be determined, according to the law made directly the subject matter of the ownership, property rights theory without Cause occurs mainly in the right to dispose of the case, that claims of faulty behavior has been revoked due to circumstances occur, without having to deal failed because of the pain caused. Real Rights Change is the distinction between property rights of the parties within the relationship between property rights and claims, ruling out the relationship between creditor relations of property to protect the third person, that is, the system is based on changes in the parties themselves about the meaning of that property, goodwill obtained from the legal relationship between the parties on the matter on the request of the external force cut off to protect the right of a third person in good faith that the law on protection of the needs of safety catch on the original owner the right to impose restrictions. visibility, good access to the system and Real Rights theory is applied in different areas, a system can not replace the other system.

In my opinion, whether it is based on Real Rights and the basic legal principles, or through empirical analysis of market transactions are difficult to draw because of the principle of no violation of trade fair conclusion. Instead, because of the principle of free trade in the maintenance of security at the same time taking into account the trading fair, is an advanced system should be in the "<Property Law"> in the practical implementation of this principle.


(D) Select from the analysis of the Real Property Act legislation theorists on the situation of property rights theory of the adoption of a different point of view. Some scholars believe that the independence of our current property law has to be accepted. <<Civil Code "> 72 the provisions of paragraph 2, in accordance with the contract or other legal methods to obtain property ownership shall be transferred from the property, or otherwise provided by law unless otherwise agreed by the parties. this articles shows, in addition to contract claims, this provision has not consciously recognized the independence of Property Act. If it does not recognize the property rights act, then the provisions of the contract should be established to transfer ownership of the object, rather than waiting until after delivery, before transferring ownership of the object. <"Contract Law"> Section 135 provides that: the seller to the buyer shall deliver the object to perform or deliver the subject matter of the documents, and transfer of ownership of the object. this provision shows that, the contracts take effect only occurs the subject matter delivered by the seller and the buyer the obligation to pay the price, that is the effect on debt law, only property buyers and sellers based on consensus and deliver the subject matter of the behavior of the subject matter of transfer of ownership to take place the legal effect. can be seen, this provision acknowledges the independence of Property Act. Some scholars believe that , China's current law does not have to be adopted on the independence property. for real estate purposes, "<Civil Code"> claims the contract did not require the parties to the contract other than separate property, and delivery of personal property based on the contract, transfer property ownership. our civil legislation has been to the delivery of movable property the same as the behavior of the claims to treat, did not recognize the behavior is independent of the delivery of behavior outside of Property Act claims. for real property is concerned, our law has always considered that the real estate transfer of the contract is essentially a civil contract, the delivery of real estate sales contract is only based on the obligations arising from, but also to real property contract for the sale of real estate registration basis.

The author believes that acts of legislation on property rights theory of indirect recognition approach is taken. <<Property Law "> Article 15, entered into between the parties on the establishment, alteration, transfer and elimination of real property in the contract, unless otherwise provided by law or the contract provides otherwise, take effect from the conclusion of the contract, did not apply for registration of property rights does not affect the validity of the contract. This provision led to a distinction between property changes and the entry into force of the contract itself, the effect of property changes, but did not recognized " Right behavior "exists in the legislation adopted by taking the indirect approach. Our model is the change in property claims in the form on the legislation," <Property Law "> Article 15 to adopt the metaphor of property is formalism, which is our is contrary to the legislative model, so the legislation can only take an indirect way.

In summary, our Real Property Act legislation adopted independence, did not adopt the property without Cause.

Third, the basic conclusion from our legislation we can see that the independence of Property Act has been adopted for our implied, for property taken away without Cause way. Claims acts provide only for the possibility of property changes, delivery or registration of contract claims are not the performance behavior, built on the property based on the agreement before the delivery and registration of the property changes a reality, the adoption of the independence of Property Act is in line with the law. Real Rights and protection of the interests of the seller due to unfavorable litters rights legislation rejected. Factual legislative options from the above view, is to be further improved.

System and property rights acquired in good faith without Cause attributable to the different areas, each with their own value, both can be integrated application. As mentioned earlier, good access to the system are flawed, but it can not be denied its protection of third party interests play an active role in the process, for its shortcomings, I believe that from the following three aspects to improve: 1. Explicitly by means of legislation the concept of good faith and malicious standard practice in good faith to facilitate the operation, 2. Inversion of the burden of proof, the original rights holder the burden of proof for non-third person in good faith, 3. Goodwill recognized in legislation is a legal act, to refrain from acts that deprive the fact that good faith is defective in the transaction when the right of revocation. Real Rights and policy choices, making changes in the legal system of property involved in highlighting the spiritual: Physics behavior and claims the right to act is considered separate, direct cause of changes in property from the Property Act, the creditor behavior is not established, is revoked, invalid, not to be ratified by the occasion, the establishment of property or the entry into force of the act itself, making the property result of changes with the legitimacy of the law. Of course, to a certain extent, it may result in the third person knowing that the contract between the buyer and seller there may be revoked or invalid reasons, malicious collusion with the assignee obtain ownership of property, damage to the interests of the seller. On this point, you can get the system to regulate use of good faith, only protection of bona fide third party, this time does not apply property without cause. Property Act Theory and the Innocent yo form a complete gauge group, they have their own application space. Innocent and the Real Rights of the combination, making China the third change in property rights protection system and more scientific, based on the property dispute without Cause nature, can in good faith to achieve a system-based, Real Rights of the secondary to create a system of protection of third persons and property changes in the system.

I believe that the behavior theory in property law property system as a whole have a civil law system, the role can not be ignored, our civil law system of property rights act theory should be adopted. Specifically, our legislation should be selected primarily made in good faith, without cause supplemented by the model to protect the safety of transactions. the main use of bona fide acquisition, property to be added without Cause, making the two systems complement each other together to protect the trade order and security and improve transaction efficiency and service in China's Economic development. reposted elsewhere Free Download Center http://www.hi138.com Papers