Research On The Difficult Application Of Law For The Bona Fide Acquisition Of Real Estate

Property Law, Recently enacted in China, specifies that the well-meaningacquisition apply to immovable property. Because the principle and legal structure ofimmovable property well-meaning acquisition is complex, there are many problemswhen immovable property well-meaning acquisition applies to judicial decision. Thispaper, with the typical case of judicial practice, from the legal angle analyses andsolutes some problems of immovable property well-meaning acquisition.The paper mainly divided into five parts.The first part "Having no right to publish" the premise of immovable propertywell-meaning acquisition. It means no sanctions specific property rights of peoplewithout authorization, dispose of the holder of the real property. A chattel is different,because the real estate to register as a public summons of the elements, so the registerin case the holder recorded in the sanctions property is impossible. In practice, theestate has no right to sanction mainly for registration rights disputes errors, the jointproperty to the disciplinary action of do STH without authorization, formation ofostensible agency, dispose of access limited but disciplinary action of do STH withoutauthorization of property to wait for a few kinds. The author in this kind ofperformance in the practice of the typical cases are listed and analyzed.The second part, the legal behavior of the legal paid-the composition of the goodfaith acquisition of immovable way. From our country "matter right law" specificprovision can see, our country’s regulation, the good faith acquisition of immovablesystem is based on the way from the legal action. By law, as a representative of thecontinental law system country in the civil law, only is the legal behavior happened tothe real right of a realty change, the legal behavior must be paid. Compared to theGerman civil law, the author thinks that, our country "matter right law" about the real right of a realty of the provisions of the good faith acquisition of tight enough, refinedand stresses that should be different civil main body according to the legal behaviorbetween paid by changes in real estate. In reality, a lot of the real right of realty isbased on law changes despite behavior, but the people and the assignee has the identitybetween personalities or economic identity, also cannot be applied to good faithacquisition of immovable system.The third part, the good faith acquisition of immovable core elements" good faith" The author thinks that, good faith acquisition of immovable in the main body of theassignee, which asks to purchase the transferee is when the real right of goodwill,"good faith" is the main body of the transferee and not only for people. In addition, thegood faith acquisition of immovable exists in the system, the assignee kindness isbased on the ownership of the registration organ produced by the trust, and namely"good faith" in the object is the property right registration organ ownership. For whatcircumstances the assignee constitute a "good faith", exist in the following debate: oneis responsible for the investigation to verify whether the assignee of the obligations,2it is to get people because of gross negligence and did not fulfill the obligations whenwhether is regarded as a goodwill the. The author thinks that should adopt differentjudgment standard to distinguish between real estate in "good faith" and has made"good faith" the chattel. On the analysis of the "good faith" assignee the constitutiverequirements, also want to consider the practice of "good faith" that will bear theburden of proof.The fourth part, good faith acquisition of immovable will pay the price-withreasonable price transfer. Good faith acquisition of immovable must demand theassignee actually paid the price. Judge whether about price "reasonable" standards,scholars put forward two standards, subjective criteria and objective standard.Subjective standard to the parties to a contract price are subject to approval of thesubjective consistent, objective standard is the general idea is to social average personon the price of that as a judgment standard. Our country "matter right law" article106"by the reasonable price transfer" and not a reasonable standard made specific provision; the judge can accord actual situation on case discretion. But the pricereasonable specific measure what objective standards can only be the judge accordingto experience, both sides of the evidence material submitted by the parties and to localinvestigation to verify the result of comprehensive consideration again.The fifth part, the necessary element of good faith acquisition ofimmovable-registration. Our country "matter right law" regulation good faithacquisition of immovables needs to perform registration formalities."Matter right law"article one hundred and six "the transfer of the realty or chattel should be registered inaccordance with law has been registered, do not need to register has delivered to theassignee" of the "should be registered have been registered" should be "have beenregistered complete" meaning. The registration of goodwill about when the judge forgood faith acquisition of immovable system, and may, according to the third person forthe registration mistake by the register whether consult and to know, that is the thirdperson for the registration mistake is the state shall not know. In Germany in the law,and the third person as long as know the assignee of the surface with registrationholder can be consistent, no need to ask the third person’s subjective psychologicalstate whether there is error. But our country not only considered only the good faithacquisition of objective judgment standard, but also consider the third person’ssubjective judgment standard, which requires the buyer for gross negligence don’tknow registration error, and that it only when the transfer of real estate for thepsychological state goodwill, this and Germany is the opposite of the of the provisionsof the law, will definitely increasing the real practice of the holder of the burden andlitigation cost.