Right choice of re-act theory seminar

[Paper Keywords] independence, because of the principle of distinction, no right to dispose of Unjust Enrichment
[Abstract] Real Rights of the advantage, to avoid trading for mutual sexual mode can not be applied at the same time due to the return of defending the right to carry an unfair result. Goodwill was no alternative transaction security for protection function, and to avoid possible non-sexual "side effects." difficult to grasp the Property Act, uncertainty and taking into account the trend of foreign Law should not recognize the property rights act theory. the principle of separation is different from the principle of distinction . no right to dispose of the building, acquired in good faith, unjust enrichment and other specific Civil Law system, be sure to pay attention to whether differences in the adoption of Property Act.

Theory of Property Act in recognition of the legislative model, the legal burden can be divided into acts and acts of punishment, including property disposition behavior and the behavior of quasi-property rights. It should be noted is that the disposition behavior and the burden is only for actions and behavior the burden of humans, in terms of relative side as obtained only act, but both can be called property rights of action or claims act.

Real property behavioral independence is without Cause the premise and foundation, but even recognize the independence of Property Act, can not logically deduce the behavior of thing of course, not because of, not because of property act of value judgments and legislation is a policy question to. "Property Act and the separation of claims act, in logic does not necessarily lead to taking property without Cause. in the specification model was taken on the property due to acts of non- , or by the Property Act. "Therefore, we first discuss the behavior of thing without cause, and then of independence.

I. Evaluation of Real Rights
(A) without the advantages of sexual
In most of the paid contract, the property assignee usually bear the same time pay the price of gold to the treatment of people benefit obligation (excluding those of reciprocity), so when the contract is not formed, invalid or revoked and returned both a negative obligation, If you adhere to the principle of a result, the price of gold paid to the other pArty can claim credit, while the other side can claim the property to claim for restitution, while fulfilling the right defense can not seem to apply to the payment of money, the pArty seems to disadvantage. If you adhere to the property free of sexual behavior, the more equitable for both.

(B) non-substitutability of sexual function
Innocent usually refer only to movable property acquired in good faith, but the credibility of real estate and personal property acquired in good faith are based on the credibility of the principle of property, both the theoretical basis of the same, and Taiwan of China, "Civil Code" Property Code Amendment Bill will be the credibility of real property acquired in good faith as real estate, so below the movable and immovable property acquired in good faith acquired in good faith as the credibility of a unified system.

Real Rights of the main supporters of the meaning that the system is to protect the security of transactions. Did not because of some cases can play the role of transaction security protection, but the system has been acquired in good faith can play a good transaction security protection role of non-sexual role of transaction security protection disappeared. Even supporters of Property Act that "German Civil Law on the disposition of statutory principles adopted without reason, apparently did not notice the system of overlapping functions and good protection .

No supporters of Mr. Su Yongqin because of that transaction in the protection of safety, there are some made in good faith does not work, but not because of the area can play a role, we might talk about it. Mr. Su Yongqin that "at least the following six Both (non-sexual and the Innocent - of note) do not overlap:}} property in the grantor has not yet achieved, but when you have the right to form, C can only claim made in good faith, does not occur because there is no problem because . (2) in the grantor to have obtained property and time, but there is no right to form, as it obtained possession of property is changed according to the method specified in ... ... (3) the transferee and the basis for the behavior to have a major fLaw invalid if they are malicious ... ... (4) No property acquired by the principle that behavior is not based on the impact of defects, all kinds of real property holder may exercise the power ... ... in Taiwan, "Civil Code", as in Germany, did not conduct all the action in good faith to give complete protection, such as claims for a variety of intellectual property rights and the punishment or subject to punishment not because of average person having no right to know and effective action to obtain debt or intellectual property rights ... ... (6) movable by corporations are good people, but if it is not based on some of the considerations made one exception ... ... to 1 point, made in good faith can make up no less than by the principle of the first 2,4,5,6 points, no are apparently due to the principle of protection system can make good the deficiency. only the first 3 points, for reasons that no malicious trading pArtners are protected, the debtor may have encouraged full-time suspected of unjust enrichment, and mining are the principle of leaving due to malicious relative transferee can not be effectively compared to, obviously wrong "
But in fact, at 2, 5, 6 and other circumstances, we believe that the transferee is not allowed to obtain property rights is justified, on the contrary, if the permitted assignee to obtain based on the principle of no property rights because it appears not appropriate . In 2 cases, the assignee is not worth protecting since the trust, the Law should also prevent their access to property rights (of course, indirectly, whether acquired in good faith should apply also worthy of further study); in 5 cases , does not allow claims, intellectual property rights other than property acquired in good faith applied, mainly because of publicity there is no perfect way of rights; in 6 cases, for example, possession of property acquired in good faith to give out to certain restrictions, is justified. In short, the specific distinction between the assignee in good faith to achieve a system of goodwill malicious people to distinguish whether the possession of the property disposition is based on the true meaning of human rights, the distinction between property rights and other rights, giving it the effect of different transfer behavior is to the assignee of the interests and rights of indigenous people the right balance between the interests of maintaining the dynamic transaction security and the balance between the static safety vest. If the principle applies without reason, there is no taking into account these specific circumstances, to the expense of the rights of indigenous people at the expense of one-sided protection of the interests of the assignee will result in static and dynamic security imbalance between the value of security binary.

We recognize that, in the absence of sexual and acquired in good faith co-existence of good faith will be made in narrowing the scope of application, but the Real Rights of the acquisition in good faith can not completely replace, the right to dispose of the case can not rely on non-sexual solve the problem, we must rely in good faith to achieve a system. and made in good faith without reason can replace the function of transaction security protection, no protection because of sex may lead to malicious Section K's "side effects" made in good faith and can be avoided, so we fully can not adopt the principle of non-sexual. As some scholars have pointed out, "would help if a credible force to the presumption of institutional arrangements with the Property Act, the Property Act's protection of bona fide third pArty access to the system function is good absorption, and its protection of non- the lack of bona fide third justification for value judgments on the same time, the lack of possession from the material means of settlement. "
Second, independent evaluation of Property Act
(A) the need to clarify several issues
1, the mortgage contract, pledge nature of the contract
Some supporters of China's Property Act that the mortgage contract, pledge contract is a typical property contract. In fact, even the mode of formalism in the property, these contracts are typically debt contract. Mortgage contract pledge contract, both pArties The quality of the mortgage property rights acts of behavior is established, mortgage registration, delivery of the pledged property implies the process of property rights is desirable.

2, the principle of separation is different from the principle of distinction
The independence of Property Act, also known as the principle of separation, but not for the principle of separation principle of distinction. Distinguish between the principle that property changes its behavior because the principle of distinction, means property in the event of a change, the reasons for change and Real Property result of changes in the law as two facts, the establishment of their entry into force of the legal basis according to different principles. on the basis of changes in property relations, that causes changes in behavior of property set up, to be established in accordance with its own elements of the act to be judged The property if the change can not be achieved as a standard to judge. on the property changes, the delivery must be movable and immovable property registered as a necessary condition, but not that the basis of relationship or the reasons for the establishment of the relationship between property changes take effect on the inevitable results. Professor Liang edited <<Property Law "Proposal Draft> in Article 7: (Right Change behavior of its reasons for the principle of distinction) to place the reasons for the purpose of property changes behavior, since the time when the legal establishment. Real change can not occur in the results, the party at fault shall be liable for breach.

Practical significance to the principle of distinction is that some of the existing law to correct an unreasonable requirement. For example, Article 41 guarantees: mortgage contracts with effect from registration. Property Law (draft) Section 262 be corrected as follows: the property is mortgaged, mortgage recorded in the register since the date of entry into force. Guarantee Act Article 64, paragraph 2: the transfer of the pledge contract from the pledged property in the possession of the pledgee take effect. Property Law (draft) Section 285 is amended as: Pledge from the pledgor to the pledgee's possession of pledged property transfer takes effect.

In fact, as long as the property changes adhere to the formalism, whether property or claims of formalism formalism, adhere to the principle of distinction. Some scholars believe that "the principle of distinction from the German Civil law, German law that the` Trennungsprinzip ', or called separation principle. in fact, this view is not correct, the principle of distinction is completely different from the principle of separation. "should be noted that the draft property law in China and their reasons for changes in behavior of the so-called property rights principle of distinction, it seems different from Germany, Switzerland, Taiwan Area law principle of distinction or separation of the so-called principle. in accordance with I usually understand it, German law is in the so-called principle of separation must have an independent existence outside the property in the behavior of the burden of behavior, the distinction or separation, not the property changes and the reasons behavior, but the property caused by acts of property and causes changes in behavior. "
(B) the advantages of independence
Theory of Property Act is a very perfect theoretical system, in order to sanction behavior and the burden of behavior is divided into basic, built out of the civil law system is relatively reasonable. To the concept of property rights system for the behavior of this set of tools for analysis of specific legal relationship, with clear, scientific, etc., conducive to a clear legal relationship, which also facilitate the application of the law. in the exercise of people's civil law thinking, the Property Act is also a very good tool.

In the current civil law scholars in China, many scholars, especially young scholars, advocates recognize the independence of Property Act. Property Act, many supporters believe that the criticism of the theory of Property Act focused on the criticism of non-sexual , and denied without cause does not of course deny the independence. In response, we have to analyze the independence of the disadvantages.

(C) Independence of the disadvantages
1, the disadvantages of comparative law
The United States in economic, political, and military dominance of its foreign expansion of legal culture, which many international conventions, international custom all reflect the characteristics of American legal culture, and U.S. law did not adopt the Property Act. Even in Europe, the European Union The law also did not adopt the Property Act. If we adopt smaller and smaller for the regional system of Property Act, will artificially expand our law and foreign law and international practice differences.

Even German scholars believe that "if you ask me: whether China should be the laws, especially property rights in the property law adopted in the contract, then, although I, as a German contract law are uncertain property rights in Germany enjoys an important position, but my answer is that China is not in the legal legislation to clarify this question, should not be specified in the Code it. and why China is to receive a small number of modern European countries to accept, a unified European law if the no longer exists in the system? "
2, it is difficult to grasp and uncertainty
Our example, sixteen-year-old M without parental consent, secretly taken from his savings account to buy a motorcycle. M cash payment of the price, V will be delivered to M. M motorcycle can obtain motorcycle ownership, because ownership of the terms of the acquisition of M is a pure interest. This is required all of our judges recognize that is a bit reluctantly.

Tong said that the property acts ethically neutral in itself is not as ethical evaluation of the object, in principle, property rights with anti-social nature of the act, not because of violation of public order and good morals and void. The same is difficult to understand people The Moreover, scholars in Germany, this view also, there are still controversial.

To no purpose because of the relative of the German judiciary to develop theories and common defects, such as that the conditions associated with said one of said legal acts such as theory, but there are serious scholars on the differences between these theories, some of the party itself is in the fiction meaning.

Imagine, for acts related to the validity of property, property changes in such important issues as whether there been so divided, if the behavior of the adoption of property rights theory, may lead to uncertainty in legal relations, judicial practice, there will be a wide variety decision, the parties can not provide reasonable expectations.

As scholars have pointed out, "the practice of law a judge has a certain legal under the current habit of thinking, if taken completely different with the existing legislative provisions, the system may result in unexpected costs, namely path dependence."
3, the embarrassment of some cases
The theory in some cases will cause some embarrassing situation, such act shall be effective when the claim was established, and Property Act does not hold, invalid or revoked. "A material in the A to B and B properties of reciprocal situation, claims behavior established and Property Act does not hold, invalid, although unable to obtain A or B or B A thing of the ownership of the property, but claims valid contract exists, the basis of its relationship with the possession of the subject matter, the parties shall request the return of property claims rights, or possession of a claim of unjust enrichment. but B may, based on reciprocity and effective contract and agreement to let a request to transfer ownership of A objects. "party can not claim ownership of ownership return, logically, how to interpret pending further discussion. reposted elsewhere in the Research Papers Download http://www.hi138.com Even Mr. Wang Zejian property legislation in the evaluation of both the mainland that "property rights should not take independent action, there will be the result of of (a result of the Property Act), this solid has the conceptualization of the system constitute the function, but its actual legal effect of occlusal patterns in China with the other acts seem to be creating a surplus property. "
Third, the property does not accept the theory of behavior change in interpretation of property
If we do not recognize the independence of Property Act, you must answer a question, that is, claims of formalism in the model property changes, how the meaning of the parties, the effect of property changes occurs. We can imagine two ways : first, that the contract contains only the legal effect of the debt claims mean, and property changes are the result of contract performance; second, that this legal behavior is not purely contractual claims debt contracts, the legal acts, including two meanings, said claims that the meaning changes and property changes of intention, or that the meaning of legal acts including the two effects, the effect of changes in debt means the meaning and effect of property changes.

For abandoned property and other acts, and how qualitative? In fact, the existence of Property Act is not a question of fact, property rights acts as an analytical tool the concept of legal relationship, whether to adopt them, not a right or wrong issue, The same is a legislative policy and legislation of choice. "'the existence of real-life property agreement' itself, is a false proposition. and the facts of life to prove the objective existence of a desired property, and in order to prove the facts of life Property contract does not exist, the same is wrong. Since the independence of Property Act is not adopted, then the classification of legal acts, there is no disposition, and the burden of Division, claims the distinction between behavior and property behavior. Therefore, to abandon such acts, it may be characterized as a legal act will be his. "law and its theory is to abandon the property characterized as legal acts, they came to an end, or a basis for further actions it is defined as property, which is a more refined legal theory is the problem, rather than right and wrong. "
Fourth, not to adopt the system of property rights related to the design of behavior
Following the laws of the late Qing Dynasty by now, we have the German civil law in addition to another branch of law - French law - has been very strange. Many of our civil law system and theory, are directly or indirectly, from Germany civil law.'s a lot of German civil law system, although not the surface behavior and the relationship between property rights, but the behavior at a deeper level and property are inextricably linked. If we do not act to adopt property rights theory, in particular system design, special attention should be this, otherwise it will make some incredible mistake. In this regard, the most typical lesson is not entitled to dispose of system.

(A) of the act and not entitled to dispose of property
In Germany and Taiwan of China, "Civil", the right disposition effect to be determined, unless there is no right to dispose of people's ratification or disposition made after the personnel action, the action has no effect. However, in this case only the disposition does not take effect, and acts as a basis for behavior is to determine the valid claims. disposition requirements of the citation has powers, but the burden of behavior does not require disposition. We contract law in the legislative process, the lack of this The depth of the problem, the effectiveness of the provisions of the contract to be determined, made a big mistake.

No right to dispose of the issue, I do not support the effectiveness of the existing contract law uncertain attitude of the contract, the contract itself should determine effective. Contract, pending the effectiveness of point of view not only help protect the security of transactions on the transaction security caused great damage, but also serious violations of the assignee's interest.

However, some scholars take the right action of contract law in China's attitude to prove the legitimacy of Property Act, that the reason of contract law on the right to dispose of major shortcomings, it is precisely because behavior is not caused by the adoption of property rights, They think that to uphold the right to determine the effective punishment under the contract, the only way is to adopt Theory of Property Act.

We recognize, adhere to the right under the contract to determine the effective disposition of the correct position, explained by means of this property act theory does have a clear, easy to understand and so on. But, even without the adoption of property act theory, we explain the path through other The same can be no right to dispose of a reasonable solution to the problem, namely, the contract itself does not require the citation has powers, under the contract as long as the right punishment acts consistent with the establishment of effective elements of the law to take effect for sure. But property changes to occur effectiveness, in addition to require the existence of a valid contract, the subject matter of the existing, specific and independent, but also requires registration or delivery of the subject matter of the action when the citation has a right to dispose of property, or the effect of property changes do not occur, unless there is disposition of people of ratification, no right to dispose of or disposition made after the application of personnel acquired in good faith.

(B) of the Property Act and the Innocent
Mainland China scholars to discuss the constitutional elements in good faith, it is usually not effective as a contract made in good faith constitute the elements, mainly due to learn from Germany and Taiwan of China Civil Law system and the theory of the process, did not notice the behavior of their property background. in Germany and Taiwan of China Civil theory, there is no basis for the contract will be made effective as a bona fide constituent elements, the reason is not because of the behavior of thing. "movable property acquired in good faith, not to cause behavior (claims actions) effective Elements ... ... valid reasons for the existence of acts, the good faith transferee of property ownership, with legal reasons, because behavior does not exist, then the good faith transferee of property ownership without legal reasons, should be in accordance with the provisions of the negative return of unjust enrichment obligations. "property if we do not adopt the position without Cause, then the contract must be made effective as an integral element of good faith.

(C) of the Property Act and unjust enrichment
In the context of Property Act, unjust enrichment and Unjust Enrichment is divided into non-payment of unjust enrichment. Unjust Enrichment produce a strong background of Property Act, "Unjust Enrichment Claim adjusted for property with theory without Cause born special normative functions of property changes. Dernberg stressed German law of unjust enrichment system is used to treat legislators to create their own wounds, the scars of its own so-called means no property due to terms of behavior . "Again, the constituent elements of its unjust enrichment is no legal" reason "in the" reasons "usually refers behavioral reasons, that the burden of behavior.

Of course, if you do not act to adopt property rights theory, does not mean the payment of unjust enrichment does not exist, but the application of unjust enrichment would be reduced appropriately. "Real Rights of relaxation will be limited to reduction or repeal of unjust enrichment scope of application, but the system itself is not unjust enrichment be any significant impact. "Even when the contract is not formed, invalid or revocation request may claim the right of return of property, rights holders can claim return of unjust enrichment of possession. Of course, the claims of formalism how to build a model system of unjust enrichment, it is a topic worthy of further study.

All in all, property rights theory of choice behavior is not a problem of non-judgment, but a problem of trade-offs. As our civil law property claims received by the standard, with the property rights theory to explain behavior change seems smoother Property more smooth, the advantages of property act theory undeniable advantages. And the reason why we do not adopt this theory, but taking into account many other factors in weighing the pros and cons on the basis of the conclusions.

Whether we act on the property's attitude to the forthcoming <<Property Law "> is concerned, I agree with the view that the legislation does not need any advice on this issue, we should not rule through the establishment of a" clean agile "to settle this heated debate," <Property Law "> the introduction of Property Act should not be controversial" Terminator. " Links to Research Papers Download http://www.hi138.com