Innocent development in China - Essay on China's "Property Law" in Good Faith

[Abstract] acquired in good faith, the first was in Roman Law to protect non-legal third pArty under the conditions of the legitimate interests of the established theory and system, all the property changes that became the third person under the protection of the theory and system . made in good faith in our legal history has experienced a gradual end to the establishment from the unrecognized as an important system of property Law in the process. However, acquired in good faith as a legal system and property rights act theory has its shortcomings compared to only play a limited role.

[Paper Keywords] acquired in good faith, property rights behavior, defects, limited role
Innocent, first in Roman Law to protect non-legal person under the legitimate interests of the third set of theories and systems, all the property changes that became the third person under the protection of the theory and systems. Made in good faith in our legal history has gone through a final approval from unacknowledged to gradually established as an important system of property Law in the process.

First, China's legal history of the "Innocent"
Ancient legal history of property ownership will be referred to as "objects of sovereignty," the owner of property known as the owner, the rich, and material of the subject matter of sovereignty, in addition to taboo material (prohibited items such as weapons, etc.), and no other restrictions, material being who steal, rob, whether things go where the owner has the right to catch up. <<Tang "provides theft Wugu buy, Zongling buyers unaware of the owner have to be recovered, and buyers do not have to pay compensation price of gold. "Law of Qing laws>> states that" Yi Shi things, there must be the Lord, "and <<Tang Name Cases>> requirements, Pirates of the dirty despite multi-transfer, without the knowledge of the buyer, although information available to the Achillea (yield), but still need to apply to the main return the original. Can be seen in ancient China acquired in good faith is not recognized. In "" The Great Law of the Qing China "Draft" and "The <China National Law" Draft>, the first time, the provisions made in good faith. Nationals of the Civil government is formally established by a bona fide Acquisition System. Article 801 of the Act: possession of movable personal property of the assignee, and subject to the provisions on the possession of the protector, the grantor no vertical transfer of ownership rights, the assignee still get ownership. The so-called occupied by about The protection provided is defined in Article 948 of the Act provides protection, in accordance with this section, the property ownership or other property for the purpose of the transfer, the transferee of the movable property of a bona fide occupants, the grantor no longitudinal to whom the right to the protection of the law still in its possession.

Second, the Bona Fide Acquisition of new China in the development of legislation and practice
New China, made in good faith in Civil law systems are recognized, scholars have different views, most still hold a positive attitude. Innocent gradually been recognized in China, also experienced a relatively long process, and this is the course of our legal system is consistent The.

December 1, 1965, the Supreme People's Procuratorate and the Ministry of Public Security jointly promulgated the "confiscation and disposal proceeds of crime on a number of Interim Provisions>> Section 6 states that: in the handling of cases have been identified by criminals to sell stolen goods should be recovered where appropriate. For buyers do know is buying stolen goods, stolen goods shall be confiscated without compensation or refund to recover the original owners, the buyer does not know is stolen, but found the owner, it should be by the offender at the original selling price property redeemed, returned to their original owners, or compensation for losses by value, if the offender is indeed unable to redeem or pay damages, according to the specific circumstances of both the buyer and the owner for mediation, properly addressed. This provision according to an informed buyer or not, were provided different principles, reflecting on the recognition and protection of the possessor in good faith, but also makes good practice, the interests of the buyer some protection, although pursuant to the provisions of compensation for damages by way of redemption or purchase by making good After the return of the original people get some compensation, according to a certain extent the interests of bona fide "made", but after all, is not this the purchase of the title to the property acquired in good faith and therefore the system is not typical, but after all this is the earliest since 1949 Bona Fide Acquisition of issues related to regulations.

Issued in 1986 <<Republic of China Civil Code "> Article 58 provides that a malicious collusion are detrimental to the state, collective or a third pArty Civil actions null and void. Obviously that is the opposite of the provisions of malicious possession of the possession of recognition of goodwill exist. Supreme Court <"On the implementation of (General Principles of Civil Law) the views of a number of issues (Trial)>> Article 89 provides that, during the existence of the common, some owners dispose of joint property without authorization, the general found to be invalid . but the third person in good faith, paid to obtain the property, should safeguard the legitimate interests of third persons, the loss of other owners from the unauthorized disposition of the common property of the person for compensation. This provision reflects the good better access to the system the spirit is made in good faith of a more clearly defined, so some scholars think that this is now dealing with an important basis for good faith of .1990 in December the Supreme <"On the implementation of (General Principles of Civil Law ) views of a number of issues (Revised)>> Article 96, part owner unauthorized disposition of common property or non-owner occupied property, unauthorized disposition, if the third person in good faith, paid, according to legal procedures to obtain ownership of the property , the third live return obligations, disposition of property by a person without the owner compensation, except as otherwise provided by law. the provisions of this section more clearly than ever before, we can say in good faith in establishing road access to the system has taken a welcome step. Links http://www.hi138.com Research Papers Download a few years after this legislation is also on the goodwill of the system had achieved a number of corresponding provisions. <<Auction Law "> Article 58 states: client, in violation of article 6 of the provisions of this Act, authorizes auction does not own or shall not dispose of the goods or property rights, it shall bear the responsibility, knowing that the client of the auction the auctioneer or goods or property rights are not shall not dispose of ownership or law, shall be jointly and severally liable. This responsibility shall include the rights of real people for the damage. Under this provision, the goodwill should distinguish between the existence of the auctioneer, the auction by the client alone or with others shared that responsibility, as the transaction relative to side can be made in good faith transferee of the ownership or other rights. <<Law of Negotiable Instruments>> Article 12: to fraud, theft, or coercion to obtain notes and other means, or knowingly the aforementioned situations, the holder in bad faith, shall not enjoy the rights to the instrument. holder made by gross negligence, does not meet the provisions of this law instruments, nor shall enjoy the right notes. which the holder by providing a malicious person may not enjoy the right notes from the negative on the bill establishes the rights acquired in good faith for the year 1999, adopted March 15 <<PRC Contract Law "> 第四 nineteen actor has no power of agency, beyond the power of agency or after the termination of agency to be agents on behalf of the contract, the relative behavior of people who have reason to believe that the right agent, the agent acts effective. The resulting disposition is not ratified or made invalid conclusions, but whether such ineffective against bona fide No. the three others did not give such scholars as defined in the draft, which is obviously weakened the trading interests of bona fide third party protection.

March 16, 2007 adopted, "<PRC Property Law"> Part II, Chapter IX of ownership "Article six people no right to dispose of real or personal property transferred to the assignee, the owner the right to recover return, unless otherwise specified, the following circumstances, the assignee to obtain ownership of the immovable or movable: (a) the assignee or transferee of the chattel property when well-intentioned, (b) the transfer of a reasonable price , (c) 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. assignee made in the preceding paragraph ownership of real or movable property, the original owner has the right to no right to demand indemnity losses. parties other property rights acquired in good faith, and with reference to the preceding two paragraphs "." one hundred and seventh of title or any other person the right to recover the lost property rights. The possession of lost property through the transfer by others the right holder the right to seek compensation without disposition, or the transferee knew or should have known that within two years from the date of the request to return the original assignee, the assignee has a business through the auction or qualified to operate who bought the lost property, the right to request return of the original should be paid by the assignee to pay the costs. the right of people to pay the fees paid to the assignee, the right to dispose of people without recourse. "formally established China's system of property rights acquired in good faith, and made in good faith application of the system to be extended to real range.

Third, China's Property Law Review obtained in good faith
"Innocent" (also known as real-time access) theory protect the third way is according to law, the third one for the defense of the original property right of the transferor to make the burden of proof in their own case to protect their property the right to obtain. The theory is that it the positive role of the third person's "good faith" as a right of access to it for protection, from the third person's subjective aspects of the transaction just to solve the problem, the maximum theoretical value of Property Act is to protect the transaction the third person. China <<Property Law "> the established system and property rights acquired in good faith in the legal act theory than in practice there are still some shortcomings: (1) movable property acquired in good faith the practice of the role of waning, with subjective and objective criteria to determine the state of mind is very difficult, high-speed development in the contemporary information society, the difficulties of proof greater good, of justice, there can not solve the problem. (2) Innocent's own shortcomings is not well, good access to the system of the first protecting the interests of the design of the three well, resulting in the protection of third party is still flawed. Because there are so many good faith to obtain the defect, the bona fide acquisition of the system can only play a limited role, but ownership of the Property Law provides for special provisions made in the chapter. Links http://www.hi138.com Research Papers Download