Real estate acquired in good faith on the composition of elements - "Property Law" Section 106 Interpretation

Keywords:: Real estate acquired in good faith error register of transactions registered in good faith

Summary: properly explained <<PRC Property Law "> property under section 106 of the constituent elements made in good faith, for the protection of security of transactions, the real right holder to maintain and improve the registration system of real significance. Real good made application of the system on the premise that the right to register issues an error. acquirer obtained by real property transactions, the disappearance of the problem made in good faith. to get taken in good faith, "the original acquisition, said," when the validity of transactions not Elements are made in good faith. the so-called "goodwill" should be whether to object to register the registration and whether the person knowingly register to obtain an error as the basis. The real estate acquired in good faith, for payment made to determine the reasonableness of the price objective criteria should be adopted. For registration for the entry into force of the elements of real property, has only made only after completion of the registration made in good faith, and to register to fight the elements of the real property, real property is acquired in good faith to deliver the composition of elements.



<<PRC Property Law "" (hereinafter referred to as <<Property Law ">) Section 106 pairs of movable and immovable property acquired in good faith to make a unified decision. <<Property Law"> Article 106, paragraph 1, lists the real and personal ownership of the goodwill to obtain the constituent elements, paragraph 2, the result of the loss of the original made in good faith the right to dispose of real property who were not entitled to compensation for the claim, paragraph 3, the (real or personal property on the) other property rights acquired in good faith reference to the provisions of paragraph 1,2. As the publicity approach real property and personal property --- Registration --- --- Notification of way --- there is a big difference between possession, so how to <<Property Law " > the basis of Article 106 of real property acquired in good faith and proper interpretation of the constituent elements, for the protection of security of transactions, the real right holder to maintain and improve the registration system of real significance.

First, the problem: stArting from the case
(A) of the case constitutes a
Real estate acquired in good faith of the constituent elements, the following cases for use Thinking:
Case 1: A room for the A's owners. January 10, 2008, A to B 100 million loan for a period of 2 years, and a room for the B to A mortgage guarantee .2009 set on September 1, B A forged identity cards, real estate license, authorization mortgage power of attorney and agreed to cancel a written document to the registration authorities for the cancellation of registration of mortgage November 1 In 2009, a room of 150 million will be sold to C and A for transfer of registration of ownership on Feb. .2010 1, due to the outstanding loan A, B and ask the court to realizing the mortgage right side that has become the owner of A Room C.

Case 2: A, B and wife, because a unit is about housing allocation, in order to avoid trouble, they decided to purchase a new registration for the B A separate room for all. Soon, the sister of C B due to urgent need of funds to the small stock 50 million in bank borrowings, B to A room set to the small bank mortgage guarantees. A request for the court confirmed that the small bank's mortgage is invalid.

Case 3: A legal construction of the actual area of ​​1000 square meters of the A room. A home ownership for initial registration, due to mapping file written by mistake A room area of ​​1 100 square meters, and so were recorded on the register of the A room area. A to B will be houses for sale and for the transfer of ownership registration.

Case 4: A room for the owner of a registration book and a real estate license are recorded as the owner. January 8, 2010, A's to A's daughter B and C as an agent signed a housing contract for the sale, the agreed sale price of 60 million A room. B A to C to produce the identity card, real estate license and notarized power of attorney and other documents. B, C and the two sides to the housing register to apply for registration of transfer of ownership for the housing. after that, B notarized power of attorney submitted forged documents, the A to B without the knowledge of the behavior of housing for sale .

Case 5: A house was incorrectly registered in the name of B, B to sell the house to 20 million for the housing C and the transfer of ownership registration. B pre-registration house price paid to C 10 million, but to B stealing and selling a house was found the request for the repayment of C, C B has not paid the remaining 10 million paying back the principal.

(B) of the problem
The case of any real property acquired in good faith of the constituent elements of the judgment. In case 1, A room of this is A true everyone, but B of A Weizao materials written off a mortgage. At this point, whether that transfer of A Room A the behavior of C is not entitled to dispose of it? C constitutes Good Faith? In case 2, A room for the A, B of the common B to C without the consent of a secured debt A room, pose no right to dispose of, small whether banks can be considered benevolent? In case 3, although there is an error on the register, but the error is recorded in error in the Housing area, pursuant to which the buyer can claim in good faith to obtain B? In case 4, A register has been clearly documented owner of the house, the third B C also know that not everyone, but based on the B application for registration materials issued by the trust and signed a housing contract for the sale and transfer of ownership for the housing register, the A room can claim ownership of acquired in good faith? In case 5, there are 10 million C is not complete payment of the purchase price, its ability to claim in good faith to obtain it?
Second, real estate acquired in good faith for the premise: no right to dispose of an error or a register
(A) real property acquired in good faith as a prerequisite for "Register error"
From "<Property Law"> Article 106, paragraph 1, sentence 1 of the provisions of view, whether movable or immovable property acquired in good faith are "no right to dispose of human action" property as a precondition. In this way, the citation "no action right "to be movable and immovable property acquired in good faith constitute the elements. on how to understand the real property acquired in good faith in the" no right "means that there are two different points of view. hold the first opinion of the scholars believe," <Property Law " > 106 will be applied uniformly in good faith to achieve a system of movable and immovable property, no right to conceal actions, both in the differences found. [1] Real estate and personal property acquired in good faith acquired in good faith important difference is that "no right to dispose of" the meaning different. to movable property, the right to dispose of more easily identified, and for the property, the right to dispose of the identification and punishment not only does not dispose of property, and knowingly involved in the registration error of disposition. because no real estate practice mainly refers to the right to dispose of the error register of real property when the right to register will be transferred to others, to obtain the trust of people were registered to conduct the transaction and the circumstances for the registration. hold the second view of the scholars believe that with the right to dispose of the error register It is not a parallel relationship between species, both common upper-order concept of human rights should never obtain. [2] because of errors in certain situations, such as the register was wrong mortgage the case of cancellation, the owner there are dispositions. Therefore, the composition of real property acquired in good faith should be discarded elements "not entitled to dispose of" the elements of the shift to "never get the right people at the" elements.

The author believes that these two views are worthy of discussion, specifically the following reasons: (1) The first view is the correct understanding of the real property and personal property acquired in good faith acquired in good faith differences, emphasizing the real property was acquired in good faith primarily for the case of error register. in real estate acquired in good faith, the right to dispose of and register the error is often the same. For example, in case 2, A room of the A, B total, but only recorded on the register separately for the B all, so there is an error register B A mortgage without the consent of a room also constitutes right action. In case 1, the action of people a room, although the true owner of A, but B of A Room with a mortgage originally used because of a fraudulent registration of the mortgage canceled, so there is an error on the register. So, in the case 1, the true owner of a house will be transferred to the A and C are right behavior is punished? this, the second point of view, no right to dispose of and parallel rather than register errors but the relationship between species. However, In my opinion, although the owner of a house is A, but B of A room on a mortgage, according to <<Property Law "> Article 191, paragraph 2 provides that the mortgagor during the mortgage without the mortgagee agree not to transfer the mortgaged property. Therefore, even if B's ​​mortgage registration was incorrectly written off, the behavior of a punishment A room is still a right action. However, in some cases, also register the error is not the same right to dispose of situation. to case 1, the registration of a mortgage in B was incorrectly written off, the A to C to A mortgage, register at this time although there is an error, a mortgage would clearly not constitute a right to discipline. since there is an error register, which register C will be obtained in reliance on A first priority housing mortgage. It can be seen, no right to dispose of and can not cover all the cases the error register. (2) The second point of view While recognizing the right to dispose of the error can not cover all the situations the register, but the shift to "the right people never obtain," the elements are not appropriate. because of "the right people never obtain" as a precondition for real property acquired in good faith not in line with "the principle of the right look (Rechtsscheinprinzip)". [3] system to protect property is not acquired in good faith to obtain the trust of people register but rather whether the right to dispose of the fact that people trust. When not on the register will be a the rights of people recorded as real people, with the person who engage in real estate transactions for various reasons, even the trust of its people for the right real estate and can not in good faith to obtain property on the property. (3) Notwithstanding <<Property Law " > Article 106, paragraph 1, use the "no right to dispose of real or personal property will transfer to the assignee," the statement, but because of the object acquired in good faith on both real property ownership, property rights can he even notice registration in certain circumstances can also be acquired in good faith, [4] Therefore, whether it is "right action" or "never obtain the right people" can be acquired in good faith as the real application of the system premise.

In summary, I believe, should be "Register error" for real property acquired in good faith as a prerequisite for the system. Long words, first of all, as stated above, errors can register right to dispose of the case cover, and no right to sanctions can not include the register of the wrong all the circumstances. Secondly, the register error as real property acquired in good faith application of the system premise is in line as the property acquired in good faith theory of the "right to the appearance of principle", but also with <<Property Law "> Article 16 the first register of a presumption of validity established by a more fit. Finally, in order to register real property acquired in good faith error as the premise for the system is conducive to the future of Real Estate Registration System. Because the trust does not occur correctly register may be obtained in good faith sex, all registered participants of real estate (real right holders, registration authorities) must be more cautious, so register an error as little as possible or reasonable to exclude possible errors in the register. [5] the only way that will correct the registration and objection to the registration to be fully used in practice, play to their capabilities to ensure that the correct register. Real estate recorded in the register of the more accurate, more reliable register of the parties. This is not only real estate transactions the efficiency and security more secure, but the situation is bound in good faith to obtain less occur.

(B) "Register error" is limited to the right of the register of error matters
From the general sense, all recorded in the register does not match with the real situation of the phenomenon known as the register can be wrong, but not all errors will result in the register of real estate acquired in good faith. In Case 3, although there is an error register (to 1 000 sq m recorded for the 1 100 square meters), but the error made in good faith will not result in consequences. Because the property acquired in good faith as a prerequisite for the system error is limited to register rights matters error, the error does not include non-rights issues. the right to register on the matter of error is recorded on the register of real property ownership or content on the matters and real property ownership or content inconsistent. include the following specific several situations: (1) does not exist on the property to be recorded in the register as the owner is not A room A room for the owner of a registration, (2) of the existing property to the wrong records, such as the A room of the A, B there is a separate registration for all, (3) cancellation of the registered property, such as to have a room for a mortgage A wrongly written off, (4) has been wrongly written off dispose of the existing restrictions on the non-existent or recorded restrictions on disposition of real estate, such as a house has been handled for A notice of registration is canceled. and register right on the issues of non-error is recorded on the register with real property ownership, or errors in matters unrelated to the content, including the following two conditions: (1) real estate recorded in the register of natural conditions on the error, as recorded in the real estate is located (location), four layers, intended use is inconsistent with the actual situation, (2) other disputes unrelated to the ownership and contents items recorded in error, such as the right to register by name, such as records of name or address error.

Theoretically, as long as the items listed on the register of whack with the real, all belong to register an error. However, errors and non-rights issues rights issues but the legal consequences of the error is not the same. If the right to register on the matter of error, real property that is vested with the real or inconsistent, it will lead to the error in reliance on the real property acquired in good faith, true and complete loss of the right people the right to face the legal risk. In case 2, A room of this is a , B total, and has only recorded on the register as the owner of B, obviously right to register the rights of people who are inconsistent with the real, the right to belong to register on the wrong issues. When B A room without action, the A to the goodwill of others may the right to obtain a total loss. When the error is not on the register of rights issues an error, apparently acquired in good faith can not happen to others problems. This is because, on the one hand, "<Property Law" Article 16 established a register of real estate the right to presumption of force is a presumption (Rechtsvermutung), designed to more effectively achieve the clarification of the rights of trade, clear of the function. Therefore, the presumption of force register only applies to those with registered capacity of the property, which real estate ownership, usufructuary and security interest. [6] the presumption of the register does not apply to register on the effectiveness of recorded natural status of real estate ownership and property rights issues or the content has nothing to do, so register right on the issues of non-error does not apply presumption of validity register, the third person does not respond to these errors have trust issues. On the other hand, good access to the system itself is only "in the presence of the external appearance of the case to protect the rights even if it does not have the trust of the real rights of real people a system "[7] Even if the third person there really register the existence of non-right wrong," trust ", also not in good faith to achieve a system of protection. [8] In Case 3, A practical room construction area of ​​1000 square meters, the error due to mapping file allows registration book incorrectly recorded in the area of ​​room A is 1 100 square meters. This error is certainly a buyer B would constitute a negative impact, but not occur B 100 square meters of housing in good faith obtain 1 legal consequences.

Third, the real property acquired in good faith by: transactions
(A) shall obtain real property obtained by legal acts
Real estate acquired in good faith transaction security system designed to maintain and improve the efficiency of the transaction, only when the acquirer is through legal action (Rechts-geschaeft) to obtain real property, real property acquired in good faith before the problem occurred. Any non-real estate property based on legal acts Although the right to change or lead-based legal action but only the right to change the law of obligations on the case, good access to the system are not applicable. bona fide acquisition of real estate applies only to real property based on changes in legal acts, Civil law in many countries or regions have Law. For example, "" German Civil Code>> Section 892 to the provisions of paragraph 1: "due to legal action to obtain land rights, or to the right of access to rights of its burden, the contents of the land register, as get people's interest, deemed to be correct, but its accuracy has been registered for the challenge, or not knowing the right people to obtain, unless. "Tong said Germany and China with the case law made clear that the <<German Civil law Code>> Section 892, Section 893 to protect the transactions made based on legal acts and therefore only the property changes caused by legal action only when problems occur acquired in good faith. the so-called because of legal action arising from real property property obtained through the act refers to the case of real property, both by <"German Civil Code>> Section 873 for the transfer of ownership of real property, including property caused by legal changes to the content or the abandonment of property [9].

<<Property Law "> 106, while not clearly defined system of property acquired in good faith applies only to real property based on changes in legal acts, but because of the article, paragraph 1, adopted a" no right to dispose of real or personal property transfer will assignee "of the statement, which" transfer "is obviously referring to the act by law, such as trading, reciprocity and other transfer of ownership of real property caused by the situation, so our law of real property acquired in good faith on the system also only apply to legal acts caused the real property.

(B) the person shall obtain real property transactions made
In the German Civil law, to obtain legal acts were made only pursuant to real property acquired in good faith is not enough for the system. Based on precedent and pass that can be acquired in good faith for the legal system must also be transactions (Vekehrsgeschaeft). In this, transactions do not mean the legal compensation, but to people and get out of real estate does not have the identity in (nicht identisch sein duerfen), triggered when the real property in the legal acts. the so-called identity of both personality identity (Persongleichheit), but also economic identity (Wirtschafliche Identitaet). [10] personality is the real identity of people and get people out of the same civil subject. For example, property registration book was incorrectly recorded as all of which he set for himself a property, its not made in good faith claim. identity is that the economy and get people who have the "economic solution to the binding (wirtschaftliche BetrachtungsweiseVerband)". [11] For example, , unlimited liability company and its shareholders when the transfer of land ownership, its not claim made in good faith. Even the people who made the legal form and belong to different subjects, but as long as there is in fact the combination of the economic solution, they of Disposal of real estate between the legal transactions can not be considered. [12] The reason why the German civil law limiting property transactions made in good faith, because "the German Civil Code>> the creation of real property acquired in good faith legislators system is to protect third people (Dritter), which is different from the people of the acquirer. only made out of people who are different from the other body will produce when the strong need to protect the legal transaction, otherwise, the owner should give priority to the interests protected. [13]
In our law, because <<Property Law "> Article 106, paragraph 1, respectively provide the" no right to dispose of people "and" assignee "of these two different subjects, so it should take the same with the German law interpretation the only different between subjects caused by legal changes in real property acquired in good faith only applies to the system. [14] This means that in those with personality identity or economic identity between the main body of the real property, even if legal action is based occurred, does not apply to bona fide acquisition. For example, register Housing will be a mistake for all to register as B, C and B is the general partner in the partnership, while B will be transferred to the C housing enterprises, even if C is good business, does not apply to bona fide acquisition system.

(C) real property transactions must be legitimate and effective
Made to the people and the transactions between the acts must be lawful and valid questions, there is a big academic debate in China. Professor Wang Liming, that even the real property acquired in good faith, legitimate transactions should also be effective is an important constituent elements . [15] because the transactions in good faith to achieve a system to maintain the safety of the system as the only possible to maintain the security of legal transactions and not protection of illegal transactions. Therefore, if made between the people and the people for breach of contract itself, the mandatory provisions of law, etc. null and void, or for reasons such as being withdrawn constitute fraud, even if the man made good, made in good faith can not stand. Professor Cui Jianyuan believes that access to the system in good faith to resolve the problem of vested property rights, contract law effect of debt problems in the field but The two should not be confused, so whether people and get out of the contract between the effectiveness of good faith as soon as a person is made in good faith and in accordance with Elements, which happened in good faith to obtain results. [16] As a result of the contract is invalid or revocation occurred after the return of the acquirer in good faith obligation to solve the system by the unjust enrichment, which belongs to the consequences of revocation of the contract is invalid or the performance itself was not made in good faith based on denial.

I believe that to solve the above arguments, we must first clarify two issues: (1) Law of the nature of real property acquired in good faith or whether it is following the subject of original acquisition, (2) whether the law of Property Act recognizes the independence and non- because of. [17] If that is the original real property acquired in good faith to obtain, that is directly provided by law for property obtained, then the <<Property Law "> Article 106, paragraph 1, does not require transactions legal, valid, so no matter legality of transactions acquired in good faith can constitute effective. If that is the second acquisition in good faith by the acquisition, should continue to consider whether to recognize the independence of Property Act and non-sexual. If the recognition of the independence of Property Act and non-sexual, constitute good faith in determining when to obtain the validity of transactions without the need to consider the issue, on the contrary, it is necessary to the validity of transactions made as a goodwill Elements.

In Germany, the scholars on whether it is original made in good faith to obtain or get there by following the controversy. [18] From "" German Civil Code>> Section 892-895 and section 932-935 of the Ordinance of view, is made in good faith, following be made, is based on the agreement on property law property changes that occur. [19] In addition, acts of German civil law explicitly recognized the independence of property and non-sexual, so as to obtain the goodwill of Property Act also has the independence and non-sexual. Shen words, bona fide acquisition of property is a special act, the general behavior of the common property is: both are acceptable and have the property of Essentials, and difference is: General Property who has the right to dispose of punishment behavior, though in good faith to obtain the transferor in the absence of powers, but because man is made in good faith, the law of "goodwill" element replaces the right to dispose of the people do not make up for the lack of disposition . [20] Similarly, the behavior of real right acquired in good faith as a non-sexual, so the question the validity of claims act by the law of obligations can be resolved completely, it does not affect the Good Faith.

The general said that China's civil law scholars that made the original made in good faith. [21] Meanwhile, the General Property Act that also rejected the independence and non-sexual. [22] That being the case, then in the "<Property Law"> 106 paragraph 1, not the legal validity of the transactions made as Elements of good condition, made in good faith to determine whether the form, they would not consider the legal validity of transactions.

Fourth, real estate acquired in good faith in the "good": the meaning and criteria
(A) of the "goodwill" of the meaning of
In real estate transactions, sometimes made with a variety of different forms of goodwill, but not all of the goodwill is <<Property Law "> Article 106, paragraph 1, of" goodwill. " Real estate acquired in good faith because the system aims to safeguard security of transactions, the protection is to obtain records of people on the register of the trust, so-called "goodwill" refers only to the goodwill of the acquirer rather than the people of goodwill. In other words, even if recorded on the register The property rights of non-real people honestly believe that he is the real holder of the property, can only benefit from <<Property Law "> Article 16 register under a presumption of validity, [23] and can not happen in good faith OF LAW. In addition to real property acquired in good faith to obtain the understanding of good faith, must be linked to the register. In other words, is made in good faith made people the right to register the error resulted in the trust issues, rather than have the trust of other facts. In case 4, C is certainly well-intentioned, but his good intentions are reflected in B with the agency's goodwill. That is, not the A B C although that ownership of the house, but he is an objective reason to believe that A's right to an agent B, and B therefore entered into the sale of housing. Therefore, in this case the goodwill of C provide protection should be <"Contract Law"> Article 49 of the Apparent Agency rather than the "Property Law"> the provisions of Article 106 of bona fide acquisition of real property.

People to get good definition, German law has adopted a "pure objective" approach, as long as the registration status register on the objective to obtain the rights to obtain the support provided to that person is made in good faith, not in fact, whether to obtain access to the register as a precondition. [24] This is because: <"German Civil Code>> Section 892, paragraph 1, in order to achieve the interests of, the contents of the register is" deemed to be correct (gilt als rich-tig) ". [25] Tong said that the German civil law scholars, this is a pro forma requirement that the register was <" German Civil Code>> Section 892 "fiction (Fik-tion)" to correct and perfect. There are also some scholars believe that this means that real property acquired in good faith in the system register is a presumption of correctness "can not be presumed (eine unwiderlegliche Vermutung)". [26] However, no matter what views are acknowledged, "< German Civil Code>> Section 892 property acquired in good faith under the system of "trust protection of ideas" has been strong, "formalized and objective", and [27] "is not subjective but the official books of the trust trust constitutes a credible and objective (publica fides) of the base. "[28]
Acquisition of Real Estate in good faith to get people in the definition of good faith, I believe that we can not take Germany and France as "pure objective" model. Shen words, the only required state registration of the register to obtain an objective on the rights of people the support is not enough, people should also be asked for the actual inspection of the register and the registration book from the man-made aware of the transfer of registration of rights holders. say this for two reasons: (1) As long time real estate registration system in China is not perfect party real estate transactions, property ownership is more trusted certificates, and did not register the formation of the trust. (2) require inspection in the register can help people deal in the future on the register gradually trust, and does not increase the burden of people will get. In the past the registration authorities unreasonable restrictions such as restrictions on the main query, such as high fees and charges, trading parties are often difficult to register, which then asked for people to inspect the register is clearly unrealistic. But, "<Property Law" promulgated across the country real estate registration agency has in accordance with the <<Property Law "and relevant laws and regulations to establish a register," <Property Law "> Article 18 also explicitly gives the right people and interested parties the right of reproduction inquiries, so ask for people to obtain access to the register does not give people a burden. [29] Moreover, the right people with the real loss would be due to real property acquired in good faith in this very serious consequences for ratio, asked for access in the transaction register is not an exaggeration.

(B) "good faith" criterion
Judge people on how to obtain the goodwill of the major controversies of scholars who focus on obtaining the obligation to investigate and verify whether the bears and get people not entirely due to gross negligence and whether they can identify the obligations of its non-goodwill. Hold the first opinion scholars believe that, "<Property Law"> Article 106, paragraph 1, item 1 of the "goodwill" in the real property acquired in good faith and movable property acquired in good faith with the same meaning, that is, whether movable or immovable property made people its good or not should take the following criteria: knowledge and knowledge not due to gross negligence. [30] for two reasons: (1) <<Property Law "> Article 106, paragraph 1, the language of item 1 There are no indications on the movable and immovable property acquired goodwill goodwill is different, therefore, that section of the "goodwill" should be the same standard, there is no movable property acquired in good faith to achieve a good standard to another standard property legislation intention. [31] (2) If the good people of immovable property, as German law as to the criteria for determining that the register records the error did not know and had no objection to the registration on the register is the good, the real rights of people who have to obtain evidence to prove real property records of the register knowing the error, which would require proof to obtain the inner state, which makes the right people are at a very real disadvantage, too harsh, fails to balance. [32] taking into account the relatively high probability of error of registration, by excluding a who made gross negligence of their duty of good faith and increased in order to tilt the right to protect the real rights of persons. [33] hold the second view of the scholars that, while <<Property Law "> Article 106, paragraph 1, the movable property in good faith combined with the real property acquired in good faith to obtain provisions, but there is still necessary to distinguish between the acquisition of movable and immovable property criteria of good people. For the acquisition of movable property that its people can have a major fault which are not good when you do not know, but in terms of real estate acquired in good faith shall be registered in order to obtain the trust of people as a judge on the real property acquired in good faith criteria. Under normal circumstances, as long as people trust the registration made to the presumption of their good intentions, unless prior knowledge of its registration error or disagree Register registration records. [34] for two reasons: (1) Although the possession of movable property less than the credibility of the credibility of real estate registration, because registration of real estate have the country's reputation for support. (2) <<Property Law "Article 16, paragraph 1 Although clearly defined period of presumed effectiveness of the register, but does not require possession of the presumption of validity, the subtle distinction that is registered in China's property law presumption of validity for the rights of property seemed higher than the delivery of the right to presumption of validity for the movable property. [35]
I agree with the second view, that is immovable and movable property shall be taken to obtain the goodwill of people of different criteria. In the good faith of movable property, the judge made in good faith, whether or not it should be considered gross negligence, that person in good faith of movable property should bear some duty of care, should know if the person having no right to dispose of gross negligence but do not know who to believe that it is not good. But to get real people, as long as the record does not know the error register and registered no objection to the registration book to be that its good intentions. acquirer assumes the obligation to have the investigation and verification, not because people do not get denied the investigation to verify their good will. [36]
The reason why I made such a claim is mainly based on the following reasons: (1) Despite the current real estate registration system in China is not perfect, registration authorities are not uniform, which makes the case of the register when an error occurs, but by giving the right to impose a third party to explore the true state of the obligations of such registration errors will be fully transferred to the risks arising from its body, is clearly unfair. In China, the rule of law is not perfect, social credibility is low, causing many reasons for the error register, The third is very difficult to make the appropriate investigations to discover the error register. from the registration of real estate practice, a large number of the register error is not entitled to dispose of all application materials were due by forging. For example, according to the Shanghai Pudong New Area Real Estate Registration Department survey, the common practice of real estate registration fraud, acts mainly as a fake ID to apply for registration with forged and counterfeit documents commissioned notary public, after the administration of justice for the real estate registration documents. which, to use forged notary instruments are mostly only in the year 2009, the parties trying to use the registry found forged documents notarized registration fraud cases reached 46. [37] for various legal instruments that forged the way in which the error caused by the register, even if the registries are hard to find, but ask for people doing this so-called "investigation and verification obligations" clearly inappropriate. This kinds of investigation and verification of the obligations imposed to obtain the practice can improve both the efficiency of the transaction and can not guarantee security of transactions. (2) whether people should be aware of in order to obtain error registers due to gross negligence but not a good case for excluding the core issue So to strengthen or weaken the credibility of the register. German civil law who of real estate acquired in good faith "goodwill" is defined to "do not know the error recorded in the register" and "no objection on the register of records", [38] This standard is clearly enhanced the credibility of the register. And asked for people not fully trust in the transaction register must also do to a certain obligation to investigate and verify, in fact, weakened the credibility of the register. taking into account the improvement of real estate registration system is in the process, the credibility of the register has not really established together, for law policy considerations should be taken to strengthen the credibility of the position of the register, so that parties to the transaction register records more reliable. The idea that people should get to know the result of gross negligence, I do not know the register did not constitute a good idea of ​​the error likely to cause too much judicial practice interpreted broadly assignee "should know" range, which greatly weakened the credibility of the register, and even parties to the transaction will make the book completely ignored the existence of real estate registration. (3) The person of immovable property good to take a more lenient standard to judge the right does not make real people are at a disadvantage. because <<Property Law "> has the right to provide a strong real protection: one based on" Property Law "> Article 19, paragraph 1 subsection, the right holder or interested party in the record that there is an error register when the registration can be corrected to eliminate the register errors made in good faith and avoid others. but before the completion of the correction of the registration, rights or interested party can also be based on <<Property Law "> Article 19, paragraph 2, the registration provisions of objections to quickly register the credibility of being cut off, to prevent others made in good faith. In other words, the registration is correct registration and objections <<Property Law"> To make real the right of people to prevent the suffering of others of its real property acquired in good faith to provide a measure of risk. If you ask for people bear some duty bound to make the system of property acquired in good faith is often difficult to apply in practice, the real right holders,利害关系人也就没有什么动力去进行更正登记和异议登记了,从而导致登记簿出现错误的概率增加.另一方面,<<物权法>>第21条第2款对于登记机构就登记簿错误造成真实权利人损害的赔偿责任实行的是无过错责任,即无论何种原因造成登记簿错误,从而使真实权利人因他人善意取得而遭受损害时,登记机构即便对此没有过错,也应当向真实权利人承担赔偿责任.[39]这种规定已经足以保护真实权利人的合法权益,因此没有必要再通过给取得人施加注意义务去过度保护真实权利人.

转贴于 免费论文下载中心 http://www.hi138.com (三)关于"善意"的举证责任问题
由于登记簿的"权利表象度"要高于动产的占有,因此德国民法学通说认为,在不动产善意取得中,应首先推定取得人是善意的,取得人不负证明自己是善意的举证责任,而由否定取得人为善意之人(往往就是真实权利人)负担之,法官最终通过自由心证对该问题加以解决.[40]我国民法学界的多数学者也认为,由于不动产登记以国家信誉作为保障,具有相当高的公信力,且<<物权法>>第16条第1句明确承认了登记簿的推定效力,因此除非取得人明知登记簿错误,否则应认定其为善意,在举证责任的分配上,原则上应由否认取得人为善意之人负举证责任,如果其不能证明取得人是恶意的,就应推定取得人是善意的.[41]
(四)判断"善意"与否的时间点
根据<<物权法>>第9条第1款的规定,基于法律行为的不动产物权变动,原则上采取登记生效要件主义,即只有经过登记,方才发生物权变动效力.因此,只有在登记完成时为止取得人都是善意的,才能构成善意取得.然而,不动产登记不可能瞬间完成,而是需要一段时间后才能完成的.例如,依据<<房屋登记办法>>第23条的规定,自受理登记申请之日起,房屋登记机构应当在30个工作日内完成国有土地范围内房屋所有权登记,在10个工作日内完成抵押权登记或地役权登记.这样一来,决定取得人的善意就有多个时间点,如提出登记申请的时间、登记机构受理登记的时间以及完成登记的时间.就以哪个时间点为准,理论上有不同的见解.持第一种观点的学者认为,由于申请登记与登记完毕存在时间差,且申请递交后,当事人无法控制登记的实际完成时间,如果在此空隙中取得人因种种原因知道了登记簿错误,就否定其为善意的话,必然不利于交易安全和市场的繁荣,因此只要取得人在申请登记时为善意,无论此后是否知道登记簿错误,均不影响善意取得的成立.[42]持第二种观点的学者认为,鉴于<<物权法>>第106条第1款第1项要求取得人在取得不动产物权时为善意,而只有当登记完成时才能算得上取得不动产物权,且<<物权法>>第14条也规定:"不动产物权的设立、变更、转让和消灭,依照法律规定应当登记的,自记载于不动产登记簿时发生效力".因此,将判断取得人是否为善意的时间点确定在记载于登记簿时更合理些.[43]
笔者认为第二种观点更为合理,理由有二:(1)与<<德国民法典>>第892条第2款的规定不同,<<物权法>>并未对取得人是否知情的时间点作出明确的规定.<<物权法>>第106条第1款第3项明确要求出让的不动产依照法律规定应当登记的已经登记,<<物权法>>第14条规定,只有记载于不动产登记簿,不动产物权变动的效力才发生.因此,以记载于登记簿的时间作为判断善意的时间点符合<<物权法>>的立法本意.(2)当事人提交登记申请后并非完全无法控制登记的进程.例如,<<房屋登记办法>>第21条明确规定:"房屋登记机构将申请登记事项记载于房屋登记簿之前,申请人可以撤回登记申请".这意味着取得人在提出登记申请后如果发现登记簿存在错误,其完全有机会撤回登记申请.基于诚信原则的要求,取得人在明确知道了登记簿错误之后自然应当撤回登记申请.

五、不动产善意取得的对价:以合理的价格转让
对善意取得不动产物权所要求的"合理的价格转让"的认定可以分解为以下三个具体标准:
1·取得人基于有偿法律行为取得不动产物权
在德国法中,无论是动产还是不动产的善意取得,都不要求取得人必须是基于有偿的法律行为取得物权.这是因为在德国法中,善意取得属于物权行为,具有独立性与无因性,而"有偿行为和无偿行为的划分仅仅适用于要因的行为,不要因的行为从某种程度上来说是中立的,因为它们脱离了有关原因的约定……在判断某项处分是有偿还是无偿的时候,我们必须研究作为基础的要因行为".[44]因此,在德国民法中,当善意取得人是无偿取得动产或不动产物权时,由此产生的不正当财产变动交由不当得利制度加以解决,即真实权利人可依依据依据<<德国民法典>>第816条第1款第2句针对该善意取得人行使不当得利返还请求权.如果善意取得人是有偿取得物权的,那么真实权利人可依<<德国民法典>>第816条第1款第1句的规定针对出让人行使不当得利返还请求权.[45]
<<物权法>>明确要求善意取得必须是基于有偿的法律行为,<<物权法>>第106条第1款第2项规定的善意取得的一个重要构成要件是"以合理的价格转让".就我国法上这一要求的合理性,学界有诸多解说.[46]而在笔者看来,<<物权法>>如此规定的理由在于以下几点:(1)<<物权法>>的立法者侧重于维护真实权利人的权益.按照德国法的上述处理方法,在取得人通过无偿交易行为而善意取得不动产物权时,真实权利人只能针对取得人行使不当得利返还请求权.可是,这种请求权属于普通的债权请求权.如果取得人破产的话,该不当得利返还请求权并无优先效力,只能与其他破产债权人平等受偿.但是,按照<<物权法>>的规定,取得人如果是通过无偿法律行为取得不动产的,就不构成善意取得.由于真实权利人并未因善意取得丧失权利,因此他可以针对取得人行使作为物权请求权的返还原物请求权.即便取得人破产,该请求权也能作为取回权加以行使.因此,以有偿性作为善意取得的要件表明<<物权法>>的立法者更重视对真实权利人物权的保护.(2)以有偿性来平衡真实权利的保护与交易安全这两项价值也更加符合我国国民的心理.由于我国市场经济实行时间较短,保障交易安全的观念尚未深入人心.[47]在普通民众看来,仅以维护交易安全作为一个人可以通过善意取得制度而无偿地取得他人的财产的正当性基础,说服力不强.可是,如果取得人是有偿取得的,此时承认其善意取得,民众显然更能接受.(3)不当得利制度在我国法中一直不发达,司法实践中运用也较少,况且以不当得利来矫正无偿善意取得带来的财产不正当变动的后果的做法,在我国法官看来过于繁琐,不如直接认为不构成善意取得那样简便快捷.

顺带说明的一点是,并非所有的基于法律行为的不动产物权变动都存在有偿与无偿的问题.在我国,就不动产善意取得而言,只有建设用地使用权的转让、房屋所有权的转让、地役权的设定或转让时才可能涉及发生有偿或无偿的问题.至于抵押权的设立显然不存在这个问题.根据<<物权法>>第106条第3款的规定,其他物权的取得参照其第1、2款的规定,因此,不能机械地要求不动产抵押权的善意取得也必须是有偿的.[48]
2·如何判断"合理的价格"
<<物权法>>第106条第1款第2项不仅要求取得人必须是通过有偿法律行为取得不动产物权,而且要求该价格必须是"合理的".关于如何判断价格合理与否,学说上提出了主观标准与客观标准两种不同见解.前者以当事人主观认可的价格为准,后者以社会一般观念作为判断依据.[49]
笔者认为,要判断取得人在取得不动产所有权或他物权时支付的价格是否合理,在大多数情形下并不会很困难,理由有二:(1)就以登记为生效要件的不动产物权变动而言,只要完成了登记,就应当认为价格是合理的.申言之,就善意取得建设用地使用权或房屋所有权而言,由于办理转移登记是善意取得的构成要件之一,因而一旦取得人满足了该要件,实际上就可以表明取得人支付的转让价格是合理的.因为依据<<契税暂行条例>>第11条第2款的规定,在房屋所有权转移登记和建设用地使用权的转移登记中,如果当事人没有提交契税完税凭证,登记机构不能办理转移登记.而<<契税暂行条例>>第4条第1款规定,国有土地使用权出让、土地使用权出售、房屋买卖的,契税的计税依据为成交价格,土地使用权交换、房屋交换的,契税的计税依据为所交换的土地使用权、房屋的价格的差额,第2款还规定,"前款成交价格明显低于市场价格并且无正当理由的,或者所交换土地使用权、房屋的价格的差额明显不合理并且无正当理由的,由征收机关参照市场价格核定".因此,只要不动产物权已经完成登记,就应当认为价格是合理的,因为税务机关已经对价格合理与否进行了替代性审查.(2)对于那些不以登记作为生效要件的不动产物权变动,如土地承包经营权的转让、没有登记的地役权的转让,由于无须缴纳契税,因而判断其是否支付了合理的价格可能存在一定的困难.对此,笔者赞同采取客观标准,即以当地相同情形下土地承包经营权或地役权的转让价格作为参考标准来确定价格是否合理.

3·是否必须实际支付了"合理的价格"
就取得人是否必须实际支付价格的问题,学界存在分歧.有学者认为,原则上必须以实际支付为要件,如果仅仅达成协议而未实际支付价款,则不构成善意取得.[50]也有学者认为,<<物权法>>第106条第1款中所规定的合理的价格既包括取得人已经向出让人实际支付的价款,也包括虽然合同中约定了价格但尚未实际支付的情形.[51]
就案例5而言,如果采取第一种观点,丙因并未实际付清全部的价款,所以其不构成善意取得,应当返还房屋给甲.如果采取第二种观点,则丙仍构成善意取得.此时,甲可以依据<<物权法>>第106条第2款的规定:请求无权处分人乙赔偿损失.当乙向甲承担了20万元的损害赔偿责任后,由于丙尚未支付剩余的10万元,那么此时乙是否可以请求丙继续支付剩余的10万元价款呢?请求权基础又何在呢?对此,有学者认为,在取得人支付了部分价款的情况下,由于合同项下另外部分的付款义务不复存在,善意取得人应当返还不当得利,该不当得利并非原物,而是原物价值额与已经支付的部分价款之间的差额. [52]显然,在无权处分人乙已经承担了20万元的损害赔偿责任后,真实权利人甲不能向丙来行使该不当得利返还请求权,这种请求权只能由乙享有.笔者认为,该结论与<<物权法>>赋予的善意取得制度的双重功能是相悖的.在我国法上,善意取得制度除通过确定无权处分时动产或不动产物权的归属而具有维护交易安全的功能外,还具有调整不正当利益变动的功能.也就是说,我国法上的善意取得制度兼具了不当得利制度的功能,否则<<物权法>>第106条就不会在善意取得的构成要件中不仅规定必须是有偿的交易行为,而且还规定价格应当合理.由此可见,从<<物权法>>的立法本意来看,善意取得制度兼具了不当得利制度的功能,因此笔者更赞同第一种观点,即所谓价格是指实际支付的价格.也正因为如此,在案例5中,取得人丙不能善意取得房屋的所有权.

六、不动产善意取得的权利变动要件:依法应当登记的已经登记,无须登记的已经交付
<<物权法>>第106条第1款第3项所指的"依照法律规定应当登记的已经登记"显然是指那些以登记为生效要件的不动产物权变动,这些不动产物权包括建设用地使用权、房屋所有权、建设用地使用权抵押权、房屋抵押权以及已经登记的地役权.在取得人善意取得这些不动产物权时,必须完成登记方符合善意取得的构成要件.对此,学界没有异议.然而,学界有争论的是,那些不以登记为物权变动生效要件而是对抗要件的不动产物权,如土地承包经营权的善意取得究竟是以登记为要件还是以交付为要件.对此,王利明教授认为,对于不以登记为生效要件的不动产物权,其善意取得仅以交付为要件.[53]而崔建远教授认为,任何不动产物权的善意取得都以办理了登记为要件,如不登记,即便已经交付,也不发生善意取得之法律后果.[54]
笔者赞同王利明教授的观点.尽管<<物权法>>第16条规定了登记簿的推定效力也承认了登记簿的公信力即不动产善意取得,但由于我国法并非如德国法那样对全部的基于法律行为的不动产物权变动采取登记生效要件主义,而是同时兼采登记生效要件主义与登记对抗要件主义,因此,我国法上登记簿的推定效力与公信力的适用是受到限制的.它们仅适用于那些以登记为生效要件的不动产物权变动的情形中.在这些不动产物权发生变动时,登记簿才具有权利表象作用,从而产生推定效力与公信力.在那些不以登记为生效要件的不动产物权变动的情形当中,登记簿并非权利表象,所以更受重视的是占有,即不动产善意取得乃是以占有的权利表象作用为基础的.这种现象是长期以来我国对农村不动产物权变动实行的严格限制政策所致.根据现行相关法律的规定,农村不动产物权的处分受到很大限制,有些不动产物权的部分处分形式是被禁止的,如宅基地使用权的抵押,有些不动产物权的处分范围受到了严格限制,如宅基地使用权的转让和家庭承包的土地承包经营权的互换必须在"本集体经济组织内部"内部进行.[55]显然,在一个熟人社会中尚没有必要以登记来表彰权利,登记簿也无法作为权利表象而产生所谓的公信力,现有的登记亦非私法意义上的权利登记.[56]而<<物权法>>第106条之所以将不动产和动产的善意取得合并规定,就是为了便于解决这些缺乏明确的公示(登记)的农村不动产物权的变动,"使善意受让人根据房产占有人来判断房屋的产权归属".[57]因此,就这些不以登记为生效要件的不动产物权的善意取得而言,交付而非登记才是构成要件之一.




Notes:
[1][35]参见王利明:<<不动产善意取得的构成要件研究>>,<<政治与法律>>2008年第10期.

[2][33]参见王洪亮:<<论登记公信力的相对化>>,<<比较法研究>>2009年第5期.

[3][4]Vgl. Westermann/Eickmann,Sachenrecht,7Aufl. Mueller ,1998,S.647, S.659.

[5][8][24][45参见[德]鲍尔、施蒂尔纳:<<德国物权法>>(上册),张双根译,法律出版社2004年版,第490页,第300页,第502页,第499页.

[6]Vgl. Leo Rosenberg, Die Beweislast,5Aufl.,Beck,1965,S.226-227, Baumgaertel,Gottfried/Laumen Hans-Willi,Handbuch der Beweislast im Privatrecht,Band 2, 2Aufl., Carl Heymann Verlag,1999,§891, Rn. 9.

[7][日]我妻荣:<<新订物权法>>,有泉亨补订,罗丽译,中国法制出版社2008年版,第42页.

[9][38]Vgl. Klaus Mueller,Sachenrecht,4Aufl., Carl Heymanns,1997,Rn.1057-1059, Rn.1104.

[10][12]Vgl. Staudinger/Gursky,§892,Rn.97, Jauernig,§892,Rn.10,§8892, Rn.105.

[11]所谓"经济解决方法的结合"是指在税法的适用方法上相同.

[13][27]Vgl. Marcus Lutter,Die Grenzen des sogenannten Gutglaubensschutzes im Grundbuch,AcP 164(1964),S.159, S.123.

[14][16][32][43][48][51][52][54]参见崔建远:<<物权法>>,中国人民大学出版社2009年版,第77页,第77-78页,第6页,第86-87页,第88页,第87-88页,第79页,第89页.

[15][46][50]参见王利明:<<物权法研究(修订版)>>(上卷),中国人民大学出版社2007年版,第450页,第445页,第446页.

[17]参见王洪亮:<<论登记公信力的相对化>>,<<比较法研究>>2009年第5期.不过,王洪亮副教授似乎忽略了善意取得究竟是继受取得还是原始取得对转让合同有效与否的争论的影响.

[18]Vgl. Staudinger/Gursky(2002),§892,Rn.11.

[19]参见田士永:<<物权行为理论研究>>,中国政法大学出版社2002年版,第259页、第262页.

[20]有学者指出:"自构成要件分析,善意取得与一般物权行为的差别在于,善意取得要求出让人为非所有权人而取得人须为善意,一般物权行为须出让人有处分权但不要求取得人善意."田士永:<<物权行为理论研究>>,中国政法大学出版社2002年版,第263页.

[21]参见王利明等:<<中国物权法教程>>,人民法院出版社2007年版,第151页,梁慧星、陈华彬:<<物权法>>(第四版),法律出版社2007年版,第212页,不同的见解参见田士永:<<物权行为理论研究>>,中国政法大学出版社2002年版,第261页.

[22]参见王利明:<<物权法研究(修订版)>>(上卷),中国人民大学出版社2007年版,第269页,崔建远:<<物权法>>,中国人民大学出版社2009年版,第52页,梁慧星、陈华彬:<<物权法>>,法律出版社2007年版,第79页.

[23]参见程啸:<<不动产登记簿推定力之研究>>,<<法学研究>>2010年第3期.

[25]Vgl. Staudinger/Gursky(2002),§892,Rn.10,Jauernig,§892,Rn.12.

[26][36][40]Vgl. MuenchKommBGB/Wacke,§892,Rn.2,§892, Rn.48,§892, Rn.49.

[28]Vgl. Gustav Boehmer,Einfuehrung in das bürgerliche Recht, 2 Aufl.,Mohr, 1965,S.232.

[29]住房和建设部、国土资源部也分别颁布了<<房屋权属登记信息查询暂行办法>>、<<土地登记资料公开查询办法>>.在实践中,查询、复制登记簿已日渐高效便捷.

[30]参见梁慧星、陈华彬:<<物权法>>,法律出版社2007年版,第102页,崔建远:<<物权法>>,中国人民大学出版社2009年版,第86页.

[31]参见孟勤国、申惠文:<<我国〈物权法〉没有承认登记公信力>>,<<东方法学>>2009年第5期.

[34]参见王利明等:<<中国物权法教程>>,人民法院出版社2007年版,第246页,江平主编:<<中国物权法教程>>,知识产权出版社2007年版,第269页.

[37]参见<<浦东新区房地产登记处认真做好登记材料的核查工作>>,载中国房地产研究会房地产产权产籍和测量委员会秘书处编:<<房地产产权产籍和测量简报>>2010年第5期.

[39]参见胡康生主编:<<中华人民共和国物权法释义>>,法律出版社2007年版,第64-65页.

[41]参见王利明等:<<中国物权法教程>>,人民法院出版社2007年版,第147页,吕伯涛主编:<<适用物权法重大疑难问题研究>>,人民法院出版社2008年版,第145-146页.

[42]参见吕伯涛主编:<<适用物权法重大疑难问题研究>>,人民法院出版社2008年版,第146页.

[44][德]卡尔•拉伦茨:<<德国民法通论>>(下册),谢怀栻等译,法律出版社2003年版,第446-447页.

[47]根据有的学者组织的问卷调查发现,在1 222份调查问卷中有852人(占70%)不支持不动产的善意取得.参见李凤章:<<从事实到规范:物权法民意基础的实证研究———以土地问题为中心>>,<<政法论坛>>2007年第3期.这说明多数民众可能并不在乎交易安全的考虑.

[49]崔建远教授主张客观标准.参见崔建远:<<物权法>>,中国人民大学出版社2009年版,第87页.王利明教授则认为,在不动产善意取得中,无须考虑价格合理与否,只要受让人信赖登记并支付了一定的价款即可,只有在动产善意取得中必须考虑价格的合理与否.参见王利明:<<物权法研究(修订版)>>(上卷),中国人民大学出版社2007年版,第446页.

[53]参见王利明等:<<中国物权法教程>>,人民法院出版社2007年版,第150页.

[55]参见陈小君:<<农村土地制度的物权法规范解析———学习〈关于推进农村改革发展若干重大问题的决定〉后的思考>>,<<法商研究>>2009年第1期.

[56]参见陈小君等:<<后农业税时代农地权利体系与运行机理研究论纲———对于我国十省农地问题立法调查为基础>>,<<法律科学>>2010年第1期.

[57]参见全国人民代表大会常务委员会法制工作委员会民法室:<<物权法立法背景与观点全集>>,法律出版社2007年版,第446页.转贴于 免费论文下载中心 http://www.hi138.com