China's urban real estate from the sale of a registration system in China recognize the value of Property Act

Papers Keywords:: urban real estate registration system for the transfer of property value logic value of the Behavior System
Abstract: Theory of Property Act since its inception, this theory has aroused widespread controversy. Paper to the transfer of urban real estate property registration system is recognized as a grave act theory analysis basis, a system of property values ​​and behavior theory logic value, and thus study whether it should recognize China's Property Law Property Act Theory.

One, of the problem
Since the German jurist Savigny property act theory has been established, the theory of Civil Law scholars in the world caused great repercussions. <"German Civil Code>> and Taiwan of China <<Civil Code>> have adopted the theory , "<Swiss Civil Code>> also pArtially adopted the theory, but <" The Japanese Civil Code>> so it did not admit to the theory.

China's civil Law scholars on the recognition of China's Property Law Property Act should have been engaged in a fierce debate. In favor of and against the theory of Property Act factions seem to have their own point of view the truth, but it seems they all have biases. This paper by Registration of Real Estate effective system of sale of the Property Law of Property Act should not recognize the doctrine.

Second, China's urban real estate registration system to recognize the transfer of property act theory
(A) of the property theory of the origin and meaning of behavior
German civil law property act theory is generally accepted academic theory property rights system is a "typical" German law characteristics. As <"German Civil Code>> the development and dissemination of property act theory of civil law countries in the world theory and practice have had an impact. how to define the concept of Property Act, several scholars define different, each with distinct characteristics. Zhengyu Bo scholars in Taiwan said: "Right conduct, to direct the movements of real right for the purpose. Yao Burghardt said: "Right behavior, meaning that from the property. with the registration or delivery of combined-type behavior to be established. Shi Shangkuan said:" Right to property of behavior that set, transfer, change or eliminate the legal purposes. These and other acts on the definition of property are willing to recognize the Property Act is the establishment, transfer, modification and termination of property for the purpose of legal acts. The behavior of legal acts and claims completely different. claims behavior is subject to the civil establishment, transfer, change and termination rights for the purpose of investigation and legal action. claim the effectiveness of behavior is occurring between the pArties due to debt contracts, change or termination "payments that seek power." creditors who can request detection services implementation of the payment, not direct control of the debtor's property to be delivered. And the effectiveness of Property Act is the direct effect of property changes occurs.

Theory of Property Act first proposed by the Savigny .19 century, he notes that his university: To fulfill the sale and purchase agreement or other transfer of ownership for the purpose of the contract and practice for the delivery, not a mere fact act, but contains a transfer of ownership of the property for the purpose of contract. In his view: first, the delivery is a separate contract. delivery of the obligations of people who migrate to the right under the contract or legal possession of the subject matter behavior, by delivering the right material on the completion of the transfer. delivery of the act itself that is both interesting. but also has external behavior, the aim is to complete the establishment of property rights, transfer, change or repeal, etc., so delivery has had as an independent terms of the contract. Second, the delivery means that is independent of the meaning of that. Savigny that deliver not only interesting in that, and this means that reason is an act of the pArties to mean that the meaning of a different nature said: The reason for the behavior of the pArty's intention is to take on debt law or other legal obligations; and in the delivery, the pArty's intention is to complete the creation of property rights, change, transfer or property The repealed. Third, the delivery must have the external form.

(B) of the property legislation of behavior theory
Savigny's Theory of Property Act directly affect the <"German Civil Code>> formulation and makes <" German Civil Code>> confirmed the theory of Property Act as the basis of property law in Germany. <"German Civil Code>> 87 Article 3, paragraph 1: "for the transfer of ownership of a property for the establishment of a property on the property and the transfer of the property or the property is more the establishment of other rights. If the law does not otherwise provided, it must have the right and the right to change the result of the other people involved in consensual, and the right to change the property registered on the register. "Section 929 provides:" To transfer the ownership of a movable property, in addition to delivery (or delivery of replacement behavior) necessary conditions outside, the owners and get people "to reach agreement on transfer of ownership."
Taiwan, China to learn <"German Civil Code>> while following the act by the property theory. Taiwan's existing Civil Code Section 758 provides: real property. In accordance with legal access, set up, loss and change, non-registered, do not take effect, the transferee who has possession of movable property, at the time so with the agreement, meaning the effect.

In addition to Germany and Taiwan of China recognized property rights in the legislative practice of fair behavior, none of the other countries give a clear definition.

(C) the transfer of urban real estate property registration system to recognize the behavior theory?
Whether our civil legislation on the recognition of property rights act, many scholars have opposing views. Two schools mainly in the "<Civil Code"> section 72 and "The" Urban Real Estate Administration Law "> Article 60, paragraph 3 whether the provisions of paragraph Property admit to the behavior. <<Civil Code "> Article 72 stipulates:" the acquisition of property rights, not violate the law. in accordance with the contract or other lawful means of obtaining property by ownership of property from the estate to the time when transfer, unless the law or unless otherwise agreed by the parties. "
Here, on the delivery of a public notice in the form of a simple transfer of ownership or agreement that contains the behavior of thing that controversial issue. Which said transfer of property is only the effective elements of the contract claim?
Published in 1840 Savigny <"Modern Roman Law system>> One writes:" private contract is the most complex and most common ... ... in all legal systems can generate contracts, and they are the most important method form. The first is the law in the debt, they are generating the most basic source of debt, the debt contracts known as contracts. In addition, in property law, they are also widely exist. delivery is a real contract, contract because it has all the characteristics of the concept: it includes the parties of the meaning of possession and ownership of the means that ... ... that in itself only as a complete delivery is not enough, because the material must be added as it made the actual possession external behavior, but these can not deny that it is the essence of contract. side although in this book, Savigny did not mention the use of the Property Act (property) contract, it is clear that both parties share transfer of property and ownership and delivery of the meaning of that place we are familiar with Real Property Act changes. Thus, "with the delivery itself is a property means that the complete behavior. and both the role of publicity." Therefore, China <<Civil Code "> Article 72 recognizes the property rights act theory.

<"Urban Real Estate Administration Law"> Article 60, paragraph 3, to register as a real transfer of ownership of the entry into force elements, the parties established a housing contract for the sale Ting, meaning that the same debt contract shall set up. But only debt contracts ( behavior) still can not produce the effect of property changes, which can not produce <<French Civil Code>> 1583 under the "subject matter and the parties to mutually agreed price of gold, even though the subject matter has not been delivered, the price of gold has not been paid . sale shall set up, and ownership of an object that is transferred to the buyer by the seller according to the law as established by contract, ownership of real estate that is transferred to the buyer by the seller of the results, still need to register. the registration behavior is directly attributable to changes in the legal ownership of real estate, legal acts in the transfer of ownership of real estate contains the meaning of the seller. So is a behavior different from the claims Independent Property Act.

In summary, our <"Urban Real Estate Administration Law"> Article 60, paragraph 3, the city provided for the transfer of real estate property registration system recognized the behavior.

Third, China's urban real estate transfer of property rights registration system recognized the value system of thinking behavior theory
1. The theory that the effective registration as elements of real property transactions, each transaction must register once again, a lot of money to pay the costs of a number, making the transaction costs are too high, which to some extent, inhibited the real estate transactions, encourage people to not registration method to circumvent the private sale of the law. Therefore, the real estate business real property registration system is not conducive to the improvement of trade efficiency. reposted elsewhere in the Research Papers Download http://www.hi138.com 2. The theory used to achieve than not Theory of Property Act more effective in safeguarding transaction security purpose?
Theory of Property Act to safeguard the role of transaction security is beyond question, but do not act theory by whether property fail to protect the transaction security purposes?
If used against the French system of registration of real estate business is not registered as a real estate business into force elements, but only as a general way of publicity. Real estate buyers and sellers agree upon a contract, even if the subject matter has not yet delivered. Price of gold has not been paid, the ownership of the subject matter has been the transferred to the buyer the seller. party may change the real estate sector real estate business registration, to obtain the effectiveness against third. If the parties do not register, does not affect the buyer to obtain title to real property only if the seller then sell the property and a third person, and with the third party to conduct registration of change of real estate transactions, the ownership of real estate made by the buyer for the third party does not have effect against third party access to the property ownership. Does this mean that a serious threat to the safety of the transaction? I think not. because of the use of a real estate business registration Effectiveness, real estate buyer to the real estate agency can check the registration of immovable property purchased by knowing whether the seller, whether defective, if the want to purchase real estate not for the seller or defective. the buyer may decide not to register, so that the real estate business relationship does not take effect. If the buyer did not want to pay the huge registration fee registration authority will approach to circumvent the law not to register, but the buyer and the seller has to bear to circumvent the law, not to register not to their potential benefits. The use of real property transactions registered against the doctrine, as the buyer can rely on the freedom to determine their own Real estate transactions to determine whether to proceed with registration. If the parties to the transaction security is not sure, can choose to register. the buyer can check the registration authority purchased the property knowing whether the seller, if flawed, if it wanted to buy real estate is not defective for the seller or the buyer may terminate the contract. If knowing the purchase of real estate search to the seller. also flawless. the buyer may be registered against the third person; if the parties sure the safety of transactions, can not register. If the judge is wrong, the transaction is actually safe, naturally can not register against a third party. This is the result of traders to choose, should be the responsibilities of its own. This and to take the Real Estate Business registration Effectiveness, the parties do not want to pay the huge registration fee registration authority to take this approach to circumvent the law not to register what is the difference? here have to say that the mandatory provisions of law the parties even if the real estate business should be registered Real estate transactions but can not force everyone to register all the parties. in practice. to take the national registration Effectiveness real estate business, real estate sale transactions the parties to avoid mandatory registration requirements of the common; and taking property registrations against the capitalist countries, to the Housing registration of real estate registration office are also many.

The above taken from the Real Estate Business Registration Antagonism affect the analysis of transaction security can be seen, to take real estate business registration Effectiveness can not be more effective in maintaining security of transactions, I believe that China's urban real estate registration system recognized by the transfer of Property Act system value theory is questionable.

Fourth, China's urban real estate transfer of property rights registration system recognized by the logic value of the thinking act theory
Whether the establishment of a system or theory, or logical value from the value of the system to examine. From the above analysis, we can see the transfer of urban real estate property registration system recognized by the behavior of the system theory and not much value, and now we From a logical point to examine whether the theoretical value of existence.

First of all, we come to the Real Estate Business Registration Antagonism registration Effectiveness Analysis of the Real Estate Business Property Act recognized the value of the availability of logical theories. In taking the Real Estate Business Registration Antagonism of France and Japan, does not recognize the theory of Property Act, registration is just a way of publicity. not to register does not affect the real estate business effectively. the parties agree that occurs upon transfer of ownership of real estate. Even if the buyer has not received the registration of real estate ownership. but not registered, can not fight the transfer of ownership respect of the same property registration have been the third person. There will be doubt. ownership is not against a third party can be called ownership?. 'Since the establishment of the buyer from the time of contract of sale has been made since ownership of an object. but to obtain ownership can not be delivered without registration or against a third party. so. People ask: is the buyer to obtain ownership? ownership is right in. not against third What is the title of ownership? or the buyer has not obtained ownership of, or he made not ownership. so. Although the Real Estate Business Registration Antagonism more flexible in practical application. but does not recognize the property rights act theory, making the acquisition of ownership and not on the effectiveness of a coordinated fight against the third person. The effect of real estate registration system to recognize the property rights act theory does not exist above the conflict. because the property sale and purchase agreement of the parties does not effect change of ownership. the parties meant to make real estate ownership shifts in the real estate authority shall be to register. Registration for the effective transfer of elements of real estate ownership, without registration, title transfer does not occur, the buyer has not obtained title to the buyer, of course not against a third party. If have been registered, the buyer to obtain title to the buyer against third course. ownership of acquisition and the effectiveness of a third person against the same time. coherence.

Second, property rights theory to make the act more clear legal relationship is conducive to distinguish between different legal effects, which will help improve the civil law system. Thus, the argument can be divided into three separate trading of legal acts: first, claims that acts of sale and purchase agreement, so that the parties and the subject matter of each negative price of gold payment obligations, even if the parties request the other party to obtain payment of claims, this is the effect on debt law; Second, the two property rights act, delivering the subject matter and the price of gold to make the other side made the subject matter or the price of gold ownership, which is obviously based on a disposition (Right Conduct) leaving the ownership is transferred, it is the effect on property law. If there is recognition of property claims outside the existence of acts of behavior, then we will act according to claims made and the price of the subject matter of the ownership of gold, and we all recognize the claims act only have the right to request payment. So do not recognize the sale of property relations, behavior and claims will lead to the coexistence of conduct disorder legal relations, the logic unclear, the unknown property and debt division, leading to confusion in the civil law system.

More than a century, people have been guessing what the final drive Savigny created the theory. I believe that to a large extent with the theory of Savigny is to better distinguish the property rights and claims, so that the civil law system more reasonable. corrected <<French Civil Code>> system, the logical confusion of the disadvantages, Daquan return regulation system of the road.

A sale of property act theory into practice three legal acts were a lot of criticism, most of them believe that this distinction between perverse. Purely fictional, is the "Rape of life." I believe that. Laws and theories are abstract of, and there must be a certain gap between real life and not entirely consistent. theory of Real Rights and to guide the judges to settle a lawsuit, not directing people to the transaction. People do not have to consider what the daily trading of non-sexual problems, they just follow the general trading rules for buying and selling on it. If there is a dispute the judge to invoke the abstract legal theory to solve it. With the development of modern society increasingly fine division of labor. law may reach every corner of society, affecting every a person's life, but no need to call each and every one legal expert, so the cost is too high. We have a special legal practitioners to provide legal services to people versed in the theory of this section and provide legal help on it. So we think that the theory of non-recognition by the public will not have any inconvenience of living. As to whether it is fictional, I believe that the legal relationship has always been fiction, legal theory, too, is given by the people live. in the legal creation of Before the term legal relationship, the concept does not exist. In the market to buy things. What legal relationship? Sometimes people do not need to consider what legal relationship. now trading, buyers and sellers must only care about whether got his wish, as to what relationship the two sides could not or did not need to consider. Is In this case, we deny the existence of the legal relationship of the fictional material value? Finally, if the act does not recognize the property rights theory, will make already established by the impact of civil law systems. Because modern to <"German Civil Code>> system of property law as the representative of Property Act is to set up based on the theory, does not recognize the property rights act theory, could make the property some of the other systems, such as Public Credit system, the absolute system of property rights, transaction security system greatly reduced the value. makes the distinction between property and claims more difficult.

In summary, I believe that recognition of property rights in the Property Law Act Theory Although the system has little value, but the logic of great value, and should be willing to recognize. Reposted elsewhere in the Research Papers Download http://www. hi138.com