Research On The Transfer Of Real Property Right Arising From Non-Legal Act

The transfer of real property right arising from non-legal act,refers to the fact that the reason caused by legal act outside of the real property right occurrence,alteration, transfer and eliminate.In the transfer of real property right arising from non-legal act,typically there is no declaration of will of the parties, even if it exists which is not considered and evaluated by the law,and not the decisive factor that affects the transfer of property right.Legal facts themselves as the same as register,also has the right to confirm the legitimacy and maintain social memory function.The real property right obtained based on non-legal act,which because the law out of respect for the social reality and make up the rigor of the registration validity doctrine,so the property right of estate can be achieved without registering.But the transfer of real property right which is not public summons,causing legal and factual property right separation, therefore,the people obtained the real property right must register before he wants to further engage in transaction,in order to avoid harming the transaction security and order.Only in the country or region implementing the alteration pattern of formalism, distinguishing between the transfer of real property right arising from the legal and non-legal act has actual meaning.The legal document in article 28 of Property Law of PRC,only refers to the judgment of formation and conciliation document based on the right of action of formation in substantive law.Moreover,only those jural relation that must through the prosecution and sentencing to change,is the judgment of formation that can be directly causing the transfer of property right,that is "the real action of formation".In our current law,the judgment of formation that can directly lead to the transfer of real property right mainly includes the judgment of cancelling a contract,and rescinding the action that debtor damaging the creditor’s right,and severing the property in common,and revoking the marriage,and terminating the right to land contractual management.In the countries of not distinguishing the testamentary succession and demise, whether the universal demise or specific demise are summarized legacy effect of property right, ownership of legacies shall the transfer of property right become valid when the testator died.For the specific demise, in the countries of accepting the universal demise,because they take the expressionism alteration of property right,so although the devisee obtain the ownership of the legacy when the devisor died,but his ownership may not be against the third person without registration.Conversely, in the countries of distinguishing the testamentary succession and demise,because of not recognizing the universal demise,so the demise only has the effect of creditor’s rights,its essence like the claim of inheritance,rather than as the succession by testament that can directly cause the transfer of property right. At the same time,in the pattern of the distinction,they take the formalism model of property right alteration,the transfer of the ownership of bequest still need to deliver or register to shall the transfer of property right become valid.The group characteristic of marriage and family decides that the provisions or agreements about the specific property system between husband and wife should be evaluated by the marriage law and not be regulated overly by the property right law.The transfer of property right that occurred based on legal marital property system belongs to the transfer of real property right arising from non-legal act.Marriage as the objective facts that has the publicity characteristics,and has the function that confirms the legitimacy of the right alteration and maintains a certain range of social memory.Marriage as the special fact of paternity plays a decisive role in the transfer of property ownership between husband and wife,rather than depends on legal or contractual marital property system. So, the transfer of property right occurred by marriage settlement also belongs to the transfer of property right arising from non-legal act.The contract for credit is not affected according to the principle of distinction when the person who gained the real property right arising from non-legal act disposes of his right even in the absence of registration.The ultimate problem that the legal document in article 31 of Property Law of PRC wants to solve is not the problem with the right or capacity of disposing,but is the problem of the registration requirements required that the ownership obtained by the article 28 to 31 of Property Law of PRC.Therefore,the obligee as the ownership in the substantive law can dispose his property right certainly.But the obligee can not effectively dispose in the register of the immovables, before without registering in the registration procedure. So,the norm nature that the right owner can not dispose his property right before register is not a prohibitive norm,but a procedural norm and technical specification in the estate registration systerm.But if the right owner has disposed his property right without processing declaratory register,and registration agency has falsely transacted the transfer register for assignee because of some reason in the registration procedure,this transfer of real property right is still valid.Although the obligee who gained the real property right wants to dispose of his property right that is not be allowed,but there are exceptions in the following circumstances,the ownership that the buyer of illegal construction gained in enforcement process,the transfer of buildings that did not apply for the initial registration and the severance of property in common that there are no heirs is not clear when a co-owner is dead.