On the property rights acquired in good faith, credibility system and property rights publicity act theory - Analysis of Property Act by the necessity of following the

Abstract: Property acquired in good faith, acts of public notice system and property rights theory of credibility is to protect the interests of third parties are to maintain transaction security system, but the three have different functions. Property acquired in good faith with the public notice can not substitute for credible property rights system behavior theory. Property acquired in good faith and credibility of the system of public notice only in the theory of Property Act, can better be explained in theory, it should learn from China's Property Act Theory.

Paper Keywords: Innocent, publicity credibility of Property Act

First, the Property Act Theory and the Innocent
Property acquired in good faith with the abstract behavior change in the protection of property interests of third parties to maintain two systems, transaction security, a system based on common values ​​between the two scholars on whether to adopt the Property Act of abstraction when Right behavior is often affirmed the role of transaction security protection, but that this does not provide good access to the system only under the premise made in good faith if the Law provides for the theory, behavior theory property will no longer necessary. it considers "in the provides good access to the system conditions, the third regime can be achieved by means of good faith is protected, without having to resort to property without Cause. "
Acquired in good faith by Wei, is movable between the grantor and the assignee to transfer property ownership for the purpose of movable property delivered by the grantor to the assignee, vertical transfer of ownership rights of the grantor not subject to transferee in good faith when people still obtain legal ownership. Innocent third way theory of protection is a third person according to Law, property rights for indigenous people to defend the right to bear the burden of proof in their own the case of protection of the rights obtained. good actor is a subjective state, as the scholars pointed out, the positive role of this theory lies in the third person's subjective state whether the rights protected as standard. But , is because it is a subjective state, in good faith to achieve a system made difficult as the interests of protection of rights. After all, human rights, it is difficult to known subjective state, it is difficult burden of proof. In practical operation, because ... fault ',' gross negligence ',' Ke Deer know ', etc. These standards so vague good people who bear the burden of proof is often difficult to prove, the protection of a third person is often stretched. "So, in good faith to play a functional only in the publicity case makes sense, with the appearance of property rights public system that the appearance of the rights-based trust of the parties to obtain property rights.


Changes in the property claims of formalism and the eclectic legislative mode, because they do not recognize the independent existence of the effectiveness of Property Act, if a prior right to acquire the rights of people with fLaws, such defects will inevitably affect the rights, FLAC people. Therefore, in these legislative mode, acquired in good faith to a large extent fully responsible for the protection of bona fide third mission. but because of the inherent limitations of model legislation, it is difficult to protect bona fide third parties play an auxiliary role, in large part, this legislative model is that from a negative to obtain rights from a malicious third party to protect the legal protection to the interests of bona fide third purpose of this formalism with the claims and some eclectic Legislation different. In the latter, the interests of the rights to obtain the subjective bad faith, their interests protected by Law, legislation should be to protect the interests of bona fide third as the starting point. so. both to protect the interests of bona fide third is the intensity of different.

Formalism and eclecticism in the claims under the legislative model, good access to the system difficult to play its role. Some scholars have put the acquisition in good faith to obtain qualitative to make up for the following rights, subject to the defect. It believes can be corrected by the assignee in good faith without lack of the right to dispose of the citation, making the right disposition to be an effective behavior. Indeed, if that is ~ species of the original acquisition in good faith to obtain, at this time, as the assignee of the rights of good faith can only be made to complement the defect, but can not make corrections no right to dispose of the effectiveness of the defects. In this legislative model, the right disposition can not be recognized as a valid act, but only the behavior of an undetermined effect. Therefore, only the buyer in good faith because the seller disposition under the effect of the lack of protection, in other reasons, such as claims null and void, revoked and other factors in the situation, based on the effectiveness of behavioral reasons, bona fide third person can not obtain the property.

Moreover, changes in the existing legislative mode property, whether classified as a bona fide acquisition will be made or a successor in the original acquisition, are difficult to resolve because of legal reasons for the act itself which led to the fate of the act is invalid. Since the right of access to the basis of claims null and void because its foundation is not a result of the existence of legally acquired in good faith to lose the right to the source. based on the "form of the same name and ownership" of the theory of bona fide third party would be unable to obtain ownership of the property.

If characterized as following the acquisition in good faith by the acquisition, protection of rights which is not conducive to people. The rights of successors to obtain different from the original acquisition, which is an important feature of the rights of non-defective by the hands of the right to direct transfer to the buyer. No matter defects known to the buyer the right to knowledge, the right to direct defects play a role in human rights, and this kind of buyer is not fair.

If characterized as following the acquisition in good faith by the acquisition, which must Notification of conflict with the principle of public faith, causing confusion in the legal system. In order to protect the security of transactions, giving Notification of credibility of the system is the choice of property rights legislation should not give up the publicity the existence of the principle of public trust, rights of people to obtain publicity and registration based on possession of credibility to obtain the property. Of course, due to different modes of national legislation on the Principle of Public Credit is also different. Swiss implementation of the relative credibility of publicity. The reason is invalid or behavior revocation, Notification of credibility affected. The German implementation of the absolute credibility of publicity. Zongling reason invalid or revoked registration, the real people are not to be the right against a third party. the credibility of both absolute and relative publicity publicity credibility, rights, The content is the property exhibited by the contents of the public system, not to hold the property by the public system is not present when the content. In other words, based on the principles of the Public Credibility made, should be made to the original, and can not be made for the following . to obtain good qualitative point of view is achieved by following the Public Credit and the principle of contradiction.

Despite the claims made in good faith under the formalism has its own rationality, but their functions were "inappropriate and exaggerated". Ll. Made in good faith to play a role only in the behavior of the theory of property rights can play the biggest role, as scholars said, "Innocent behavior related to property rights theory of the rationality of the problem." using real right acquired in good faith is the credibility of the feature to maximize its value, however, play this function only in the theory of Property Act to achieve the desired effect.

Second, the property rights system behavior and the credibility of Real Right
So, publicity establish the credibility of the system can replace the theory of property without Cause? The answer is no.

Indeed, the dominant property, absolute and exclusive requirements, the right to change a great impact on the interests of others, so the change in property rights must be publicly advertised, and as such, publicity principle is the property of the nature and the objective requirements of real life. But publicity is not a means, but the end, the Law gives a certain credibility in this announcement, this announcement has the right to presumption of correctness and good protection. Trader trust that is based on the appearance of publicity protected by law, even if the substantive rights not reflected in the registration system or reflect incomplete credibility also requires public notice of these rights at the end of the transaction does not exist as a people. "publicity methods demonstrated by the property does not exist or the content of longitudinal vary, but for the confidence expressed by the property registration and, for property transactions were still recognized by the law and real property there with the same legal effect. "" But, if the transaction were clearly aware of this defect, are not subject to legal protection.

Real right there What is the basis of credibility? If a homeowner does not sell or trade their homes not only in the third person involved, this announcement does not exists. As the trading in the third person objective , for the protection of third party interests and the requirements of transaction security credibility given to such publicity, as the scholars said, that the credibility of fact "in order to reduce transaction costs, maintain trade order and the rights of the correctness and the third the laws of the subjective good faith presumption is essentially a hypothesis "but this is also known, the credibility of the system of property announcement only dynamic property transactions have meaning, if the claim will affect the validity of acts of Property Act Right to perform behaviors or the effect, then the real right there to lose the credibility of the foundation, just kind of "legal fiction". "formalism in the claims, the publicity only to play the role of highlighting the fact that property changes. If the cause of behavior defects (not valid, invalid or revoked), the changes highlight the fact that publicity is not true, the effect of property changes at this time because of restricted movements, publicity effect of property changes can not be characterized by: "Only when the property without Cause theory, the only basis of its existence. As the scholars said: "Real property behavioral theory is a direct principle of publicity, and it has the internal material for production of close contact. The connection point within the contact, is formalism principle. "Links to Research Papers Download http://www.hi138.com some scholars have pointed out:" Real Rights of access and goodwill, credibility of different application of the system: property rights protection act is a chain of transactions safety, it has right to dispose of the elements, while the real right acquired in good faith and credibility of the seller having no right to protection: the transaction does not require disposition. "And, whether it is bona fide acquisition system or the right to brew the principles of Public Credit, not only can not replace the function of Property Act, but these systems can only act in the theory of property rights can play its due role. Meanwhile, in theory, these systems, especially the Public Credibility system acts only in the theory of property rights to get the perfect description.

Third, the Property Act Theory in the Chinese Civil Construction
Property Act 1, there is the possibility theory in China
First, the Property Act is an objective reality. Regardless of legislators and scholars admit it or not, property rights theory of behavior play a role in real life. If the behavior in abandoned, abandoned, said to be interesting, while a waiver of the behavior of secondary abandoned in order to achieve results. As the scholar said, "Right there's where individual behavior, such as abandonment of the property, but also in the form of property deeds occasions, such as his right to property and the typical setting, split a total of contracts and other things. "Property of the changes must be publicized, and as such," principle of publicity is a property of the nature and the objective requirements of real-life "
Second, China is a successor in law countries, following by German law is inherent in the tradition, both: a <"The Great Qing National Civil Law Civil Law Bill >>,<<" Draft> or <<ROC Legislative>> all without exception, the absorption of the preparation of legislation in Germany five-l1 can be said that five of the German legislative model is establishment of basis for legislation. Although the LAC in 2002 were issued by the Civil Code, the preparation of the draft structure of nine. We talk about the existence of solid science, it is clear that the German five-nine is the preparation of the preparation of the development of model legislation, and a distinctive feature of the Civil Code with the General. From the above analysis we can know, because of the existence of legal acts , the existence of the general provisions of the Civil Code is possible, but also because of the presence of Property Act, only to have the command of General of the legal effect of the whole series. Although some elements of the General Rules of the Civil Code can not be fully applicable, but the Civil Code function is to deny the request can not be legal in all content can be compiled for all the provisions of the Civil Code, Civil Code that is an unrealistic one demanding.

Following the establishment by the structure of the five German law, but under German law, following a surface, we have the main thing is to absorb the essence of German law, German law and system of logic to ensure the impartiality of judges and unity. This is what we have to absorb. Practice has proved that by coming from Germany following the set of concepts, principles, systems and theoretical system has become the legal traditions and legal culture component. 'So, in the Civil Code's formulation, the absorption behavior of the German Civil Code the essence of the legal theory of Property Act is a logical choice.

2. Theory of Property Act to establish in China
Since the theory of Property Act to establish its feasibility in China, but I agree on the behavior of the German Civil Code of the property theory of reference absorption. Germany's Property Act of abstract principle, separation principle and the principle of formalism, in the German property law essence, we should be absorbed. But in Germany, due to the implementation of behavior theory in the property also has its inherent disadvantages, such as property rights theory of abstract behavior, in the interests of protection, the existence of inadequate protection of the interests of the seller and so on. Therefore, these shortcomings should be overcome.

First, the Real Rights of limitations. If the strict implementation of the theory of property without Cause, then, based on the same meaning that can only lead to claims null and void and can not lead to property as invalid, it is the parties not fair, does not conform to legal theory. So, in the event of claims and the occurrence of effects of property rights means that the effect of intention or coincidence effect of the two-phase in the common influence on the composition, in which case, the property without Cause theory should be limited. namely, the German civil law, "conditions associated with", "common defects," "one of the legal acts" under the relative of non-sexual. However, in these circumstances, on the property the principle of non-sexual behavior of limitations, not the exception, but the amendment to the Property Act.

Second, protection of the interests of the seller, in the original existence of the occasion, the seller's claim of unjust enrichment has to return the original effect. Since the effectiveness of the independent existence of property rights, then, when the act is invalid because, even if the original material exists, the seller can only enjoy the unjust enrichment claim, rather than claim for restitution of property rights, protecting the interests of this case the seller is not enough. Of course, if the original does not exist, or is bought by a third party, this situation is understandable. However, when such a situation if given the buyer's original claim for restitution can be a good solution to this problem. In fact, "" German Civil Code>> Section 818 provisions of paragraph 2 of the same thing: "The gains made by its nature can not be returned, or the beneficiary can not be returned due to other original cause, the beneficiary shall be returned to its value. "Thus, in Germany, as long as the original exists, the seller can still get original ownership. Links http://www.hi138.com Research Papers Download