| This dissertation consists of three parts with seven chapters.The first part includes the first chapter,the second chapter and the third chapter.It mainly investigates the structure of the property law,the legal structure of the sale of the property of others in Roman law,and the civil property legal system of original countries(France and Germany),of which the purpose is to illuminate what legal issues will the sale of the property of others face and acquire the idea of how to solve the issues based on the established legal system resources of Roman law,French law and German law;the second part covers the fourth chapter,it mainly investigates the civil property legal system in Japan(legal transplantation country).The purpose of it is to observe the fluency of related regulations and review what problem it meet so as to provide the references for mainland China with similar social background during the process of transplanting and settling of programs.The third part contains the fifth chapter,the sixth chapter and the seventh chapter,which mainly investigates the solutions in the existing legal problems of the sale of the property of others in mainland China and explores the systematic obstacles it faces.From positive and negative experiences and lessons the first two parts have revealed,the author makes a comprehensive consideration at the level of system,combined with the long-term accumulation of legal resources and possible routes since mainland China inherits modern civil law.The first chapter is an investigation about the structure of the property law and the legal structure of the sale of the property of others in Roman law.Its purpose is to outline the legal system and legal structure about the sale of the property of others so as to offer the context and origin of systematic investigation for the following three parts.The connotation of ownership in Rome law is relatively solidified(can be called “solidified ownership”),which will influence the legal structure of transaction to some extent: the contract of sale only can be valid with debt,if the ownership and debt one side possesses,and the debt another side pays equally do not meet the transfer of ownership,they would employ a relevant formation to reach their transfer.From it,the characters of formalism in Rome can be seen.Nevertheless,the practice of ownership transfer tends to be abstract.Thus the act of the sale of the property of others is allowed and the validity of the sale contract shall not be interfered.If the owners want their possessions back on occasion of the sale of the property of others in Roma,the seller will undertake the responsibility of assurance.The relevant contents about the legal structure of the sale of the property of others and its interrelations in Rome law mentioned above is still in use today.Thus it puts a significant impact on the system of civil property law of France and Germany(belonging to continental law system).The second chapter is an investigation about legal systematic observation of the sale of the property of others in French civil law.The formation of expressionism of ownership's alteration in French civil law has its own source,which to a certain extent separates from tradition of formalism in Roman law.From the perspective of Jurisprudence,the proprietorship in French civil code is not absolute,but on the base publicity,it can be effective during the transaction.However,such proprietorship can be described as "alteration of proprietorship ".Based on the understanding of proprietorship and possession above,the right's changing model composed of expressionism and publicity is established in French civil code.On the one hand,the parties' intention can transfer proprietorship in law without absoluteness;on the other hand,the economic reality also ignores it,while it is not because the civil code does not endow with absoluteness.In the transaction practice,parties still have the demand to obtain the proprietorship in the world and the Civil Code brings legal counter force carried by "possession by right" as a response.On this way,on the condition of the sale of the property of others,the sales contract is logically null and void.However,barriers attach to the system of civil code.Consequently,it integrates with traditional system and case law to define the contract of the sale of the property of others as ineffective so as to make the relations clear among liability to guarantee,violation responsibility,tortious liability and right of unjust enrichment.As for the arrangement of ownership in the sale of the property of others,French civil code resolves the problem of chattels' transfer with “possession by rights”-the counter force bought by possession and the authority the right derives,but it neglects the validation of immovable transfer in law.Hence it has to resort to reformulate law,study legal theory and bring to trial so as to gradually seek for proper solution,bringing into record and completing it with ostensible ownership.Due to narrow range of application to unjust enrichment in French civil code,it has a little room on occasion of the sale of the property of others.Under circumstance of transferring ownership,movable property does not go for “the principle of retrieve”,while immovable property goes for restoration of ownership.As a whole,although there is a flaw in French civil code about sales,the capacity of transaction demand in reality does not be suffered on the basis of the established legal resources(theory,judicial precedent and notary regime).The third chapter refers to a legal systematic observation of the sale of the property of others in Germany civil law.Germany takes the legal act theory as a method and made the legal expression of trading process more refined,namely,mutual independence and abstract of bearing(obligatory right)act and disposing(real right)act,thus establishing the unique pattern for Germany property law.The ownership in Germany civil code lays equal stress on domination and absoluteness.This ownership can be called "solidified ownership ".Possession is treated with complete fact,which can be called "possession in reality ".To match the dualistic system between real right and creditor's right above,the ownership can't be transferred through parties' agreement.It needs legal external forms—possession and registration—to win the confidence of the public in varying degrees,which creates formalism of Germany property law.The validity of sale contract is independently judged by whether it meets the valid requirements of juristic act under situation of the sale of the property of others.Moreover,the validity of consensus of ownership's transfer is uncertain because person without right have no disposal.And validity of it needs to be judged by statutory causes.If the consensus of ownership is valid,the validity of ownership's transfer is related to legal forms such as payment or registration,and the transfer has nothing to do with the validity of sale contract mentioned above.Transferee acquires ownership depending on good faith acquisition of movables or public reliance of immovable property registration with validity of ownership consensus being uncertain or invalid.Whether the ownership could be achieved eventually depends on the validity of the sale contract.If the sale contract is valid,through which we can adjust the relationship between no-obligee and assignee.The assignee can achieve the ownership based on legal reasons.The original obligee whose ownership is deprived can also claim for unjust enrichment from the no-obligee.If the sale contract is invalid,the assignee achieving the ownership lacks legal reasons.The no-obligee can claim for unjust enrichment or transfer the right to the original obligee who can claim for right from assignee.From it,formalism based on clarifying property and debt in Germany civil law operates smoothly while facing the sale of the property of others.It is harmless for some imperfection in details.On the whole,the system which compares with formalism of French civil law in the sale of the property of others is more operable in real practices.Moreover,its instrumental value brings convenience to the full transplantation.The fourth chapter is about legal systematic observation of the sale of the property of others in Japanese civil law.Affected by the attitude of “equal profit sharing” in the process of Japanese civil law compilation,Japanese property law inherits conceptual system of German civil law(including property and debt two dichotomous right's system),but turns back to French civil law on expressionism and publicity of ownership and possession-there is not absolute changing ownership in law or “rights of possession” near to the right.So only proclamation causing counter force can it apply to the transfer of property in transaction.According to the Japanese civil code,the contract of sale is able to transfer the ownership of the subject matter.As for validation solely based on the consensual claims or agreement of property right,the argument of it is still endless.In the case of the sale of the property of others,the Japanese civil law ignores the logic requirements of the system and defines the contract of sale as valid,paving way for applications to the warranty to the defects of title and liability for breach of contract among parties.While considering that “possession by right” gives the public confidence in Japanese civil law,the buyer can acquire the ownership of movable property immediately.Whereas in real estate,the register does not have the same credibility as the German civil law and Japanese civil law does not generate the solution of“manifestation of ownership”as French civil law does.The buyers who sell other's real estate will not be able to obtain ownership.The changing ownership in Japanese civil law also makes multiple trading possible.After first sales,other series of trading is also in line with the legal structure of the sale of the property of others.The one who occupies or registers can be against the third party and obtain the ownership with defensible validity.As for the scope of resisting the third person,there are not consistent opinions in Japanese academia.Due to the arguments above,unjust enrichment also has limited effects.From the view of the sale of the property of others,the transplantation in Japanese civil law is not very successful because almost nodes of every problem are in endless controversy.The last three chapters analyze the issues of the sale of the property of others existing in legal system of mainland China and suitable proper route based on the local resources.Without doubt,China started to inherit modern civil law since late Qing Dynasty,which belongs to German legal system.After the influence of the former Soviet Union civil law,its internal value and spirit—autonomy of the will with the foundation of the civil law— has been removed.And exclusiveness of ownership on the perspective of law level also has been abandoned.Since 1980 s,it gradually gets away from the Soviet Union and get close to the Western civil law.But it is no more the legal system during the period from late Qing Dynasty to the Republic of China.Nevertheless,in the 1990 s,the Japanese civil law also added its influence on that.The model of ownership's change in mainland China has not been established,which often holds creditor formalism as well as real right formalism.Because of this,in the sale of the property of others,the dispute on occasion of sales is still endless arising from the article 51 in the Contract Law—the contract's effectiveness is pending without the disposition of the right.Although the article 3 in judicial interpretation of the sale contract exists— the contract of the sale of the property of others is effective,a series of related problems on dualistic structure of real right and creditor's right in property rights have not been clarified,whose contradiction is whether it can go further,that is,the recognition of disposition(juristic act of real right).Movable and immovable property is uniformly applicable to acquisition in good faith in property law.It is slightly rough,because it is not enough to respond to the needs of real transactions.Of the arrangement on legal system of arranging interests among the parties,the item that involves in the imbalance of the sale of the property of others is not clear,such as ability incurred by defects of right,the ownership that returning petition right and unjust enrichment claim etc.The unjust enrichment claims with roughness and chaotic application,yet cannot effectively balance the interests among parties.In fact,on the issue of the sale of the property of others,the situation of Chinese mainland now is very similar to Japan which has endless controversy on the relevant problems.The reason is that it hesitates on pivotal issues and has defects in the pattern of system,as a legal transplantation country.Through systematic barriers about the sale of the property of others in mainland China,it is limited to the understanding of juristic acts of real rights.To acknowledge it makes system clear,and conversely it gets into dilemma like Japanese civil law.The reason is: since late Qing Dynasty,the legal system of civil property China inherited is rooted in the core concepts of “solidified ownership” and “possession in reality”,which is the whole succession of Germany civil property law system.By studying “solidified ownership”,the development of juristic acts of real right,the relations of logical system in German civil law,as well as the comparison with “changing ownership” and the structure of French civil law,it can be confirmed that if mainland Chinese civil property law is still based on the dualistic structure between property and claims,and the ownership still inherits the “solidified ownership” of Qing Dynasty,it's not wise to refuse the juristic acts of real rights.And if we only admit the independence of juristic acts of real rights while abandoning the non-cause,it is just a superficial understanding to juristic act of real right undoubtedly.Hence,it could not deeply implement autonomy of the will bore by the theory of legal act and may be drifted into a controversial situation like Japan.Therefore,in the range of this dissertation,it can be found that the theory of juristic acts of real rights makes the controversial situation arising from creditor formalism get a new outlook,and lets the sale of the property of others run smoothly and solutions more reasonable:It can be concluded wholly or systematically from the text:(1)In terms of should-be level,different legal structure of ownership— "changing ownership" or "solidified ownership" are corresponded to the different patterns of ownership transactions—expressionism or formalism on the mode of right transfer,which decides the legal structure in transaction.As a kind of trading anomaly in the human economic reality—the legal structure of the sale of the property of others should be determined by this.In view of logic,the discussed order mentioned above should be established—although the argument is not very adequate,it also be validated by some countries or regions such as France,Germany and Taiwan.And under the formalism of property transaction,the theory of legal act,as an abstract method of implementing autonomy of the will,should affect the property law system and the fluency of feasible transaction solution,with a standard of whether can be used by property law system and its degree of adoption.(2)In the practical level,the ownership's legal structure of the countries or regions in the text—the "changing ownership" or the "solidified ownership" —will indeed have an impact on the pattern of property law.One is the integration of property and debt(France property law),or the dualistic structure of property and debt(German property law).Another one is that if we can properly correspond to the trading model of expressionism(French property law)or formalism(German property law),we will make a typical sample on the arrangement of the property law system—a system composed of legal concept,legal idea and legal interpretation—only by this can it runs smoothly without obstruction.Otherwise,it is bound to a result of suffering many obstacles on the system,just as the Japanese civil law does.In this way,the arrangement of the system in logic may be disturbed,for the transaction mode of property law is affected by the ownership's legal structure of law science theory and idea,and the product of national or regional lawful policy.The choices legislators make are often restrained by a variety of factors—theory accumulation,ideology,the adoption of succeeded conceptual system and reference on the development of law or even some chance factors.The sale of the property of others is considered as a different trading practice,whether its legal solutions are appropriate reflects the fluency of the property law system in a country or region.Instead,whether the arrangement on system of property law is reasonable is also decides the appropriateness of legal solution on the problem of the sale of the property of others.Although the samples selected in this text is not comprehensive,they are fairly typical.These samples also can clarify the issues in the outline or the context.Therefore,if we admit that there are many obstacles in solution to system of the sale of the property of others in mainland China,we will have to face the appropriateness of the property law system.And if we admit the credibility of contents above,the direction of mainland China's civil property law—based on the inherited path and the legitimacy of the system determined by the principle of law and the verifiability of legal system and other factors—should also be clear. |
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