Analysis of the restriction apply to bona fide acquisition of stolen goods

[Abstract] acquired in good faith apply to stolen goods has been controversial in China, China's current Laws and regulations have not made clear and detailed requirements. Posts made in good faith by the analysis system to distinguish between stolen goods and Lost, stolen goods in the study of China and made in good faith on the basis of the relevant Laws and regulations, other countries of the stolen goods acquired in good faith apply restrictive legislation, applicable to the Improvement of stolen goods acquired in good faith system recommendations.

[Paper Keywords] stolen property, acquired in good faith, bona fide third

First, the good faith to obtain an overview of the

Acquired in good faith is an important property of the Civil Law system, in recognition of the static security of property ownership Laws and the basic principles of protection of property order under the premise of the statutory occasions at the expense of the cost of ownership quiet to protect the security of property transactions moving security of a system. In <<Property Law>> before the introduction of China's Civil legislation, and there is no clear provision in good faith to obtain the direct provision, only <<Civil Code>> Article 89 provides for protection of bona fide assignee case .2007 implemented << Property Law>> 第一百零 six to one hundred and eight clear that bona fide acquisition of the basic rules.

Made in good faith in the system, is divided into the possession of movable property and possession from the material entrusted to so-called possession of property is entrusted to people under the true meaning of the loss of the right to possession of property, possession is not based on material from the real meaning of the loss of human rights possession of material, such as stolen goods, Lost, drifting objects, buried or hidden objects, etc. for possession of commissioned material, in principle applicable to acquired in good faith, for possession from the material, in addition to currency, bearer securities acquired in good faith is absolutely applicable, the acquired in good faith generally does not apply, but with the <<Civil Code>> compared to <<Property Law>> of the Lost, and hidden treasure trove of material has made exceptions. According to <<Property Law>> provides, in principle, applies as Lost Property acquired in good faith, so even if the transferee in good faith and without negligence, not made in good faith in accordance with claim ownership of the subject matter, therefore, entitled to rights of assignees recover lost property, the term is self-aware or should have known that two years from the date of the transferee, but if the transferee is through the auction, to the qualification of the operators have to purchase the lost property, the owner shall be paid by the assignee costs incurred in order to recover lost property. buried or hidden objects with reference to Lost Lost and the rules that, from the possession of objects belonging to Lost, and hidden treasure trove of good material conditions applicable to the acquisition, goodwill by people experience through the auction or the qualifications of experience with such a possession out of things to buy, choose the right one can recover to the subject matter of the transferee in good faith, but must pay the price to the transferee in good faith. payment of the price, the right people rights according to the provisions of tort or unjust enrichment to the person entitled to dispose of recovery. the right people can choose not to recover to the assignee of the subject matter, while the person entitled to dispose of the request to the return of unjust enrichment, or tort damages if the return obtained or compensation, the right to recover the assignee shall not revert to the subject matter, which shows that the transferee may retain the subject matter.


Second, the difference between stolen goods and Lost Property

Possession of stolen goods is a matter out, but the stolen goods is a clear difference with Lost First, Lost Property can only be movable, can not constitute the real, but stolen goods, both movable and can be real, and secondly, although the Lost Property and stolen goods are not really the right person for the loss of their means of material possession, but the former is true because the rights of people caused by the fault, which is caused by Criminal acts, once again, Lost is in the area of ​​Civil law. meaning The principle of autonomy is the basic principles of civil law, its meaning is one of the law is expressly prohibited without freedom, as long as the main act does not violate the civil laws, administrative regulations and mandatory requirements of public order and good morals, the state can not intervene. stolen goods, primarily in the Criminal be involved in the field of law, Criminal law is to protect the Criminal acts were violations of social relations, then the rights of people with really good third person, who is the only real rights by Criminal acts against, so protect the rights of people really matter possession of bona fide third pArties should be given priority in the summary, the stolen goods and how to apply the Lost Property acquired in good faith should be treated differently, not equally in the market economy, the absolute implementation of the principle of ownership means that the assignee to protect the transaction does require detailed to investigate whether the transfer of people for the disposition, however, the assignee need to always worry about whether things are required to return the transaction, which will inevitably result in excessive transaction costs, low efficiency, resulting in shrinkage of the market economy, so stolen goods restrictive acquired in good faith applies not only to protect the normal market transactions, but also in civil law and criminal law to find a balance between, both to protect the real interests of right holders, but also to the proper treatment based on the principle of fairness of the legal rights of bona fide third pArties.


Third, China's current laws and regulations applicable to acquired in good faith with the stolen goods related content

Although the stolen goods and possession of lost property are all from the same material, but <<Property Law>> does not apply to the stolen goods are made in good faith to provide for the system, the Chinese legislature, this explanation is <<Property Law>> in: "The reason stolen goods acquired in good faith does not require the legislature to consider is that for stolen, robbed of property, according to owner primarily through judicial <<>>,<< Criminal Code of Criminal Procedure>>, "Public Security Administration Law>> and other relevant returned after the recovery of the law. "In fact, China's current laws on stolen goods acquired in good faith shall not uniform, but obscure content, resulting in judicial practice exists in the handling of stolen goods across the country on different approaches. At present, acquired in good faith on stolen goods legal norms as follows:
1.1965 years, the Supreme People's Procuratorate and the Ministry of Public Security jointly issued the <<on the confiscation of proceeds of crime and dealing with a number of Interim Provisions>> sixth states: "In handling the case has been verified by criminals to sell stolen goods, should be recovered where appropriate . really know the buyer to purchase stolen goods, stolen goods free of charge should be recovered, the buyer does not know is stolen, but found the owner, and criminals should be redeemed or the original price to the original damages, refund of the original owners, or by price damages if the offender is indeed unable to redeem or damages, according to the specific circumstances of both buyers and sellers for mediation, properly handle. "These provisions indicate that the protection of the interests of bona fide third pArties.

2.1995-year implementation of the <<Law of Negotiable Instruments>> Article XII: "to fraud, theft or coercion to obtain notes, or knowingly forefront of the case, notes made in bad faith, shall not enjoy the right notes. Bearer for gross negligence does not meet the provisions of this law to obtain notes, nor shall enjoy the right notes. "assumption may be presumed from the requirement to obtain the holder is a good bill, you can enjoy the right notes.

3.1996 in the Supreme Court issued <<specific fraud cases on the trial application of the law to explain the problem>> states: "The perpetrator of property has been used in repayment of personal debts, loans or other economic activities, if the other party knowingly obtaining property by deception and malicious charge is made, should all be recovered, as indeed acquired in good faith, are no longer recover. "confirmation of the fraud cases in the judicial interpretation of the stolen goods acquired in good faith applies.

4.1997 Ministry of Public Security issued the <<on the handling of economic issues related to contract fraud cases to inform>> Article V provides: "The perpetrator of fraud has been used in the return of property debt, money or other economic activities, if the other party knowingly obtaining property by deception and charge, is a malicious acquisition, should all be recovered, as indeed acquired in good faith, are no longer recovered. the victim suffers loss, according to institute civil action can be resolved. "This provision reflects once again apply for fraud stolen goods acquired in good faith spirit Links to free download http://www.hi138.com 5.1998 in the Supreme People's Procuratorate, the Ministry of Public Security, State Administration for Industry and Commerce jointly promulgated the <<on the legal investigation of theft, robbery and motor vehicle cases requirements "under Article XII:" knowingly buy stolen cars, the vehicle should be free recover, the purchase of vehicles for violation of state regulations, have been confirmed to be stolen cars, the public security organ according to Criminal Procedure Article 110 , 114 provides for the recovery and seizure. do not knowingly buy stolen cars, and be refunded the buyer after closing. "The requirement that the Pirates of the stolen goods for the applicable class of motor vehicles acquired in good faith.

From the above legal norms do not prohibit the introduction of our stolen goods acquired in good faith, but the content of the legislation is imperfect is not clear, the following shortcomings: First, acquired in good faith applicable to a narrow range, only stolen vehicle theft category, notes and fraud stolen goods, The second is the lack of recognized standards of malicious third is the protection of the provisions of the original owners of stolen goods is not perfect.


Fourth, the legislative proposals

Currently, the regulations apply to stolen goods acquired in good faith on behalf of restrictive countries are Germany, France, Japan and Switzerland. <<German Civil Code>> Section 935 provides that: the material from theft at all, or is otherwise lost by all means loss of material, shall not apply to acquired in good faith, but for the currency, bearer securities and sell by public auction of the property does not apply these provisions. <<French Civil Code>> Section 2279 provides: a possession in the case of theft of property, when Lost Property victim or missing person from lost or stolen three years from the time when people were asked to return their material possession, but the person in possession of material was to exercise the right of claim, its 2280 provides: A person whose actual possession possession of stolen property or lost property by the market, auction or sale of similar goods merchant who purchased their original owners only pay the price of gold paid by the person in possession when making a request to return the material. <<Japanese Civil Code>> Section 193 provides: a possession of stolen property or lost property, the victim or missing person from lost or stolen within two years from the date of the request can reply to the person in possession of its property, its Section 194 provides: Pirates of the stolen and lost property, such as possession by the auction at the Department, public market or sell the same types of things bought by the businessman who in good faith at the time, the victim or missing person unless the person to settle its share of consideration paid, shall not return to its material. <<Swiss Civil Code>> Section 934 provides that: the person in possession or loss due to theft or breach of its meaning and those who lose their movable property, within five years to request the return of any person to buy from over national legislation can be seen, stolen goods, acquired in good faith with the following restrictions apply characteristics: First, the original rights holders may request the return of a certain period of time the subject matter, but for the currency, bearer securities may not request the return of the second, when the transferee in good faith by auction, public markets or operating such items at a reasonable businessman purchase price of the subject matter, the right to request the return of the original subject matter in good faith transferee required to pay the right price.

In order to maintain social order and stability and economic development, China can refer to more than national legislation, through judicial interpretation of the restrictive application of stolen goods acquired in good faith to make it clear that the following recommendations:
1 and expand the scope of stolen goods acquired in good faith applies not only for stolen motor vehicle theft category, notes and fraud stolen goods, but also for other movable and immovable property, in some special conditions, set on guarantee in stolen goods property is acquired in good faith can be applied, however, laws and regulations prohibit the flow of things, restrict the circulation material and proprietary items not applicable franchise acquired in good faith.

2 as stolen currency and bearer securities acquired in good faith is absolutely applicable. Money is movable but unlike other movable property, which has a high degree of substitution and consumer. It's combined ownership and possession, so possession of the currency is the currency of all people. Transferee is the currency of a third person following the suspension from the original rights holders to obtain ownership of the currency for bearer securities, according to China < <Law>> requirement, per registered securities to the transferee after the transfer of force occurs, regardless of the securities or property on behalf of the creditor, equity, so its application made in good faith.

3 Set the original rights holders the right to request reply time. Made in good faith to protect public order and security of transactions in the legal ownership of static situations at the expense of security at the expense of a system, so the need for and effectiveness of the original owners to recover limit, according to <<Property Law>> requirement, the original rights to the assignee to recover lost property, the period since the transferee knew or should have known the date of 2 years. Lost stolen goods and possession of different categories from the material. stolen goods, non-rights holders by the original meaning of the original rights of possession from a criminal act caused, so the right people for the stolen goods, the original claim response period should be longer than Lost.

4 For by auction, public market or sell similar goods merchant impose reasonable price to buy stolen goods of bona fide third person, based on the principle of fairness, establish the system of paid reply in such circumstances, the original rights holders are required to bona fide third pay the right price, in order to recover the subject matter.

5. The development of bona fide third objective criteria identified in the judicial practice and judicial workers require specific criteria to determine "good" or''bad faith ", otherwise it will weaken the stolen goods made in good faith the provisions applicable to the practice of operability. Share on free download http://www.hi138.com