Stduy On Elements Of Acquisition In Good Faith System Of Immovables Mortgage

Mortgage has long been known as the "King of Guarantee", yet in real life mostly mortgage refers to immovables mortgage. While in today’s China the immovables registration system is still not complete, such as non-unifying registration system, multi-institutional management and so forth. All these defects lead to the registration of immovables mortgage does not conform to the practical situation. The Section1and3of Article106of the Property Law of the People’s Republic of China shall be put into judicial practice under such circumstance. However when it comes to immovables mortgage, whether the applicable elements on acquisition in good faith of immovables ownership prescribed in Article106Section1could be fully applied is still in doubt.In order to determine the applicable elements of acquisition in good faith system of immovables mortgage, this article discusses the differences between immovables mortgage and movables mortgage from the perspectives of registration process, right appearance and standard of acquisition in good faith in the first place. It should be pointed out that the movables comparative studied hereinafter referred to the movables specially prescribed in Property Law, rather than movables in any normal sense. This article makes clear that the significance of registration for special movables and immovables, to some extent, it is the essential reason why the special movables are differ from immovables in right appearance, standard of acquisition in good faith and other aspects. The discussion laies a foundation for the following research on acquisition in good faith system of immovables mortgage. Subsequently, the article discuses the acquisition in good faith of immovables mortgage in terms of the subjective element, objective element and registration process.The subjective element of acquisition in good faith of immovables mortgage refers to acquisition in good faith. The good faith factor can be called as the fundamental reason why the actual situation is protected by law when it is inconsistent with the immovable mortgage registration. And the good faith evolves from subjective standard to objective standard, such tendency also find expression in the development of acquisition in good faith of immovables mortgage which pursues the objective criterion in these days. Meanwhile, I like to think the "objective criterion" changes over time, so we should take concrete consideration in judicial practice.The objective element of acquisition in good faith of immovables mortgage refers to reasonable price, which is endowed with Chinese characteristics. In Germany, Switzerland and some other countries, where similar immovables acquisition in good faith systems exist, the law does not require for a reasonable price, but in China, the law calls for not only a reasonable price but a paid off reasonable price. This part mainly discusses the theory of reasonable price, on this basis further explores the value of immovables mortgage consideration which belongs to the obligatory rights, and also researches the criteria of what is reasonable. I, but, have to admit when it comes to juridical practice, the reasonable price of immovables mortgage is too theocratical to be of practice concern.Last but not least, the article focuses on the immovables registration procedures, and gives a detailed discussion about the legal effect of immovables registration, the applicable scope of registration of immovables acquisition in good faith and the judge point of immovables registration.Overall, the acquisition in good faith of immovables mortgage is a system that based on credibility protects the third party who counts on wrong registration for good faith. And obviously such protection need a real complete registration system and powerful credibility to back it up, or the immovables registration will lose its credibility. Once occurred frequently, the immovables registration will descend to a waste paper. Therefore, the ending part put forward some suggestions about the registration system and the reasonable price in acquisition in good faith of jus in re alien concerning immovables.