The Study Of Bona Fide Acquisition Of Stolen

Based on analysis on Bone Fide acquisition of spoils in various countries and regions, this dissertation explores the necessity and possibility of limited application of Bone Fide acquisition of spoils in china and proposes legislation advices.Spoils, are properties which are illegally possessed by violation of laws and regulations, which should be retrieved by the judiciary after investigation. It has four features:1. Spoils include both property and property benefits;2. The properties possessed should be assets that need to be retrieved by the judiciary after investigation;3. The possession is achieved by illegal acts.4. the possession itself is illegal.The legislation of Bone Fide acquisition of spoils could be divided into three types. Some countries don’t accept Bone Fide acquisition. Some others apply it utterly into the law. The third type is t eclecticism, the partial application of this institution under specific conditions. The first type ignores the necessity to protect property benefits of the owners. By overprotecting the effectiveness of transaction, it may encourage crime as well. The second type, however, totally ignores the interests of bona fide third party and blindly protects the property benefits of the owner, which is unbeneficial to develop market economy based on credit system. The eclecticism mode achieves a balance between the interests of owner and bone fide third party. Therefore it should be a proper example for bone fide acquisition of spoils in China.The legislation of bone fide acquisition of spoils encountered a forth and back process. Although the application of bone fide acquisition to spoils was not clearly rejected in Chinese law, there has never been an explicit approval for bone fide acquisition of spoils. What there have been are certain explanations and answers by the judiciary, which are not operative. The64th article of Criminal Law denied bone fide acquisition of spoils. The Property Law also avoided clear stipulation on this issue. Thus, the validity of bone fide acquisition of spoils became more ambiguous.China should adopt partial application of bone fide acquisition of spoils, because it is consistent with the fairness principal. What’s more, it could facilitate transaction as well as promote economy efficiency by maintain the order of daily life and production. Bone fide acquisition of spoils should be applied under such conditions:1. the property transferred to the third party should be spoils.2. The third party’s acquisition should be based on bone fide.3. the person conducting unauthorized disposition should be the occupant of the spoils. The bone fide third party should acquire the spoils by transaction and a reasonable consideration needs to be paid.5. The spoils transferred should be delivered or registered. As the bone fide acquisition happens, the property right is transferred to the bone fide third party instantly. The previous owner is not entitled to retrieve the asset, unless he or she had completed payment to the bone fide third party.The actual institution for bone fide acquisition of spoils should include the following factors:1. the explicit category of spoils that should apply bone fide acquisition.2. a clear period of claim for spoils(two years)3. The establishment of open market4. Different types of spoils should be treated accordingly.5. The right of claim should be secured.