| Acquisition in good faith is one of the important systems in the property law, which is originated from the "Hand Muss Hand Wahren" system in ancient Germanic law, and is determined by civil laws in most of the countries. Due to the difference in national legislation, there are also different views in theoretical research on whether acquisition in good faith can be applied to immovable properties. As immovable property is of significant importance to national economy, adoption of acquisition in good faith is particularly important to the stimulating the flow of immovable property, securing the safety of transaction and maintaining the stability of social order. China's property law has adopted the acquisition in good faith on immovable property, however in section 106 acquisition in good faith is uniformly applied to both movable property and immovable property, which neglects the difference between each other. Hence many problems remain to be clarified and resolved, and further amendments are desired. From a theoretical perspective, this article reviews the concept of acquisition in good faith on immovable property, discusses the theoretical basis and practical significance and assesses its legal value and effectiveness. By the comparison with advanced legislative experience of foreign countries, this article will further discuss the shortcomings of China's acquisition in good faith on immovable property and put forward the author's own resolution of improvement. There are five chapters:In chapter 1, the author analyze the origin of acquisition in good faith, explained the concept of acquisition in good faith of immovable property. Acquisition in good faith is originated from the "Hand muss Hand Wahren" system in ancient Germanic law. Acquisition in good faith of immovable property, by definition, is the transaction between the assignee in good faith reliance on the credibility of the immovable property registration and the person of rights registered. When the right of the immovable property has already been under the name of assignee, even if the registration of the rights of people with the real record holder does not match, the assignee in good faith obtains the real-time ownership of the property and won't be challenged by the real record holder, who can only request for compensation from the registration authority. By comparative study, this article analyzed the different attitudes on acquisition in good faith of immovable property in different countries.In chapter 2, the theoretical basis and the practical significance of acquisition in good faith of immovable property have been discussed. By analysis of the theories, assumptions and practical significance of acquisition in good faith system of immovable property, the article describes the significance of China's property law's adoption of acquisition in good faith of immovable property.In chapter 3, along with the property law, the key component and the legal effects of acquisition in good faith of immovable property are analyzed. In property law, acquisition in good faith is an important rule of change in property rights. To help understanding the system, the first is to clarify the content of the right of dispose; the second is to determine the validity of the contract; the third is to assess the criterion of good faith; the fourth is to analyze the reasonable price of the contract of acquisition in good faith of immovable property; the fifth is to search the proper benchmark of acquisition in good faith of immovable property; the sixth is to analyze the necessarily of the completion of the registration procedure in the key components of acquisition in good faith of immovable property. The key components and legal effects are comprehensively analyzed.In Chapter 4, the scope of the application of acquisition in good faith of immovable property in China's property law is investigated. As the regulation of acquisition in good faith of immovable property remains to be improved and the scope of the application of acquisition in good faith of immovable property has not yet been clearly defined, the following five situations should be include in the author's opinion: 1. one or some of the co-owners arbitrarily manage registered immovable property; 2. Registration of immovable property defects; 3. Not yet been registered but not illegal real estate; 4. The case of property under construction; 5. Acquisition of immovable property by the third party in public auction. Through the analysis, the scope of acquisition in good faith of immovable property can be refined to facilitate judicial practice.In chapter 5, there is a review of improvement of acquisition in good faith of immovable property. China's property law clearly provides for real property acquired in good faith system and its key components, is a major breakthrough in civil law theory. However, the principle of the system is too simple, which yields unsatisfactory results in practice. For all the shortcomings talked above, based on the analysis and discussion, this article put forward some advice on the criteria of "good faith" in acquisition in good faith, registration system of immovable property, protection of the original provisions of the interests of right holders and the legal expression of acquisition in good faith of immovable property. The author sincerely hopes that this article would help achieving the legislative intention of protection and standardization of transaction security. |
