Research Applicable Field Of Bona Fide Acquisition Of Movable Property

Bona Fide Acquisition origins from the absolute ownership in Roman Law and "Hand Muss Hand Warren" in Germanic Law. For the security of the commodity trade, except one or two countries, many countries establish Bona Fide Acquisition of movable property, which sacrifices the steady ownership of movable property and the third party in good faith gets the property. Article 106 of the Real Right Law in China provides requirements of Bona Fide Acquisition, but doesn't clarify the applicable field of this system. Moreover, there're disputes about the interpretation of Article 107, which relates to the question whether movable property escaping from owner could be the object of Bona Fide Acquisition. Things possessed under entrust is always the object of Bona Fide Acquisition, but movable property escaping from owner is complicated, including booty, lost things, forgetting things, things taken by mistake and so on. Booty applies to Bona Fide Acquisition shall violate the moral rules and since laws concerning other movable property escaping from owner aren't perfect, movable property escaping from owner shall apply to Bona Fide Acquisition in special circumstances. The thesis comes to the conclusion that applicable field of Bona Fide Acquisition shall consider the legal tradition, legal system and people's reception by studying and comparing relevant provisions of other countries and regions. Through interpreting Article 107 of the Real Right Law, the thesis points out lost things apply to Bona Fide Acquisition, while other movable property escaping from owner shall be excluded. Besides Introduction and Conclusion, this thesis is divided into three parts as follows: The first part discusses the formation and theoretical basis of Bona Fide Acquisition, which includes two aspects. Firstly, it expounds the history of Bona Fide Acquisition, and suggests nowadays the system in many countries is different from "Hand Muss Hand Warren" in Germanic law. China has established Bona Fide Acquisition in law like other countries. Secondly, by comparing and analyzing theories about the theoretical basis of Bona Fide Acquisition, it proposes Bona Fide Acquisition bases on social benefits which the third party represents in preference to individual benefits which the former owner represents, so benefit weighing shall be the theoretical basis of the system.The second part analyzes the applicable object of Bona Fide Acquisition, which is composed of two aspects. Firstly, it compares two kinds of legislative model of Bona Fide Acquisition, and gets an overall review about the applicable object of Bona Fide Acquisition. Secondly, by defining and analyzing movable property escaping from owner, it reaches a conclusion that Booty can't be the object of Bona Fide Acquisition because of criminal policy; other movable property escaping from owner can't be the object of Bona Fide Acquisition because conditions aren't ripe; whether Article 107 of the Real Right Law recognizes lost things shall be the object of Bona Fide Acquisition in special circumstances needs discussion.The third part explains lost things apply to special Bona Fide Acquisition, which is also explored from two aspects. In one aspect, it analyzes the relationship between Article 106 and 107 of the Real Right Law, and the relationship between the Real Right Law and the Contract Law with the method of comparative interpretation, which confirm Article 107 of the Real Right Law provide lost things shall be the object of special Bona Fide Acquisition. In the other aspect, it thoroughly explains Article 107, and determines former owner has the right of formation to require returning the object; the two years'duration is period of immunity; the principle of open market and money as well as bearer securities can't be returned are corresponding measures.