The Choice Of The Pattern Protecting Transaction Safety For Alternating The Real Property Right In Rem In Our Country

The basic category of the right in rem law includes three parts as following":the static domination order of the right in rem", "the rule of alternating the right in rem", "the system protecting the transaction safety in alternating the right in rem". The content of dissertation belongs to the third basic category. There are many differences in arguing way because of the dissimilarity of public notification method between the movable property right in rem and the real property right in rem. Considering the restriction of the space and the convenience of the argument, author selects only the pattern protecting the transaction safety in alternating the real property right in rem. Taking the pattern protecting the transaction safety in alternating the real property right in rem as the main clue as well as considering the public trust system of the real property right in rem registration as the center, author launches expounding the study. Some scholars argued there are three choices of the pattern protecting the transaction in alternating the right in rem as following: "acquiring the property by good faith", "the public trust power ", "the abstraktionsprinzip of the juristic act of right in rem". In fact, there still is the fourth pattern ——namely such as the pattern of Japanese civil law, applying that provision about the both parties'hypocrisy declaration of will. There are disputes on which pattern is superior or inferior among the four kinds of protection patterns actually. Currently, our country is drawing up the right in rem law, so at present to analyze which pattern match our country conditions have particularly significance both in theory and reality. By comparison of their advantages and disadvantages, author regards the public trust system is the best pattern which meet our country's conditions. Though there is long history and rich content, the study about the registration of real property isn't still thoroughly owing to the state and collective ownership of the land for long after the foundation of the People's Republic of China and that the land can't become an objection of the transaction.(The real property commercialization is stimulated and developed in the 1990's ). It remains different even about the comprehension of the public trust . Content of full dissertation includes four chapters. We Can generalize to two parts " what is the public trust of the real property right in rem registration" and "why to establish the public trust of the real property right in rem registration". Chapter 1. Its title is" To analyze the content about the public trust power of the real property right in rem registration". It mainly analyze the content of the public trust power and the relation between the public notification and the public trust power. Among them "the function and values of the real property right in rem registration system"part, author applys the functional analysis method to analyze the function and values of the real property right in rem to provide the reference for the chapters follows comparing four patterns protecting the transaction safety. Chapter 2, chapter 3, chapter 4 are to resolve the problem of "why". Chapter 2. Its title is" valued the affect of the way through act of law system to make up the shortage of public trust power of the real property right in rem registration –––take droping support from reason by analogy the 94the provision 2nd Section of Japanese civil law for an example". By the analysis, it is argued that the pattern of Japan not the result of the scientific research. And seeing from the result, that way of doing may only replace part of function of the public trust power. Chapter 3.Its title is " The public trust power of the real property right in remregistration and acquiring the real property system by good faith ". It is pointed out "the public trust power of registration"is unequal to "acquiring the real property by good faith". The good faith acquiring theories of the real property protect the third party of good faith weaker than the public trust power of registration both in the width and depth. Considering the judicial unification and the purification of the system, we should establish and improve the public trust power of the real property right in rem and need not establish the good faith acquiring of the real property right in rem system. Chapter 4. Its title is" To compare the public trust power of the real property right in rem registers with the abstraktionsprinzip of the juristic act of right in rem". It is argued that the public trust power of the registration does not orginated from the juristic act of right in rem. Abstraktionsprinzip of the juristic act of right in rem cannot be applied in the false Registration caused by the invalidation or revocable or without establishment of the act of obligation ,and the juristic act of right in rem remains validation in the meantime. And the public trust power of the real property right in rem registration does not take the difference with the reasons cause registration wrong. It takes both the true right subject and the third part's benefit into accounts, and matches the conditions of our country. Ten National Peoples Congress bring " the real property right in rem registration law" into one of current 76 lawmaking agendas. So we should strengthen more explicitly the research about" how to set up the scientific public trust power system of the real property right in rem registration "now.