The Research On The Criterion Of Bona Fides Under Bona Fides Acquisition Of Immovable Prorerty

Among the component elements of bona fides acquisition, the mostimportant element is the element of bona fides, the judgment on whichwill directly determine whether the third party is able to receive goodwillprotection. However, the judgment on "bona fides" belongs to thesubjective judgment in our country. Before or after the promulgation of“Property Law”, the legislation of our country generally employs themode of general stipulations. As a result, different criterions areestablished in our judicial practices. Based on the theoretical analysis, thisarticle aims to correctly define the connotation of the bona fides under thesystem of bona fide acquisition of immovable property, and at the sametime observe and study the advanced theory and legislation technologyrelevant to element of bona fides among bona fide acquisition ofimmovable property at home and abroad, and put forward the criterion of“bona fides” under the system of bona fide acquisition of immovableproperty in our country. The article is divided into four chapters.In Chapter One, it points out that there are no unified criterion for element of bona fides during bona fide acquisition of immovable propertyin our legislation and judiciary system. The elaboration is mainly dividedinto two steps. In the first step, we illustrate from the perspective oflegislative stipulation that the legislation on the elements of bona fides forbona fide acquisition of immovable property in our country isundistributed. In the second step, from the perspective of judicialprecedent, we illustrate that the applicable criterion for elements of bonafides for bona fide acquisition of immovable property is not unified inChina’s current judicial practices.In Chapter Two, we respectively illustrate the connotationdefinition and judgment approach of “bona fides” in the bona fideacquisition of immovable property. Firstly, combining with thedemonstrative principle of real right, we define the connotation of “bonafides” as “assignee’s reasonable reliance on real property register”. Atthe same time, from the theoretical perspective and by comparisonbetween domestic legislation and foreign legislation, we continue toillustrate that the connotation of "bona fides" in immovable property inour country should be defined as the phenomenon that the assignee“doesn’t know, or due to gross negligence, doesn’t know” theincorrectness of register. After that, we discuss the similarities anddifferences in judgment approach to the objective bona fides andsubjective bona fides, and propose adopting the judgment approach to the objective bona fides.In Chapter Three, we establish the criterion of element of bonafides for the system of bona fide acquisition of immovable property inour country. Based on understanding of the connotation of the “bonafides” and selection of judgment approach, we argue that the element ofbona fides shall firstly meet the objective standard of “incorrectness ofreal estate register” for bona fides. Secondly, the assignee must meet therequirement of fulfilling the duty of care. Meanwhile, this articleenumerates several typical forms of duty of care.In Chapter Four, we put forward the legislative proposals to perfectelement of bona fides for the system of bona fide acquisition ofimmovable property in our country.