Legal Instruments:Research And Judgment Of Directly Leading To Real Rights Change

As the main reason of real rights change not based on legal acts, true record of legal practical activities and ultimate carrier of legal case conclusion, the legal instruments play an extremely important role in judicial practice. However, as for the ambiguity and uncertainty of legal instrument, in Article28of Property Law, the malady of legal instruments becomes much more obvious as time goes on and the dispute to it is making a bigger and bigger clamor. The dispute and clamor focuses on the following points:What is the scope of the legal instrument in Article28? Is it only limited in the written judgments and exceptional executive orders recognized by mainstream without mediation documents or arbitration award? Is the nature of it merely formative without compensatory or authenticity? How many kinds of documents that can directly lead to real right change there are in our law system if the legal instrument defined here only means formative legal documents.In order to figure out the questions mentioned above, taking the basic theory of real rights change as its starting point and comparing various countries’advanced legislation, this paper analyzes the definition of legal instrument in Article28th of Property Law to start a discussion by comprehensively using the research methods of comparative analysis, system analysis, empirical analysis and case analysis with the combination of correlative stipulations of civil substantive law and procedural law.This paper is composed of five parts:Part One mainly categorizes the legal instrument in Article28of Property Law and defines its scope as judiciary written judgment, arbitration award and respective order of civil executive routine, but not including mediation documents. It also infers that legal instruments of this scope can only be formative legal instrument by analyzing the nature of three lawsuit.Part Two analyzes the mechanism of civil judgment directly leading to real rights change. It concludes that in civil judgment only formative judgment with formative power can directly lead to the possibility of real rights change, by analyzing three kinds of judgment and their four types of effectiveness.Part Three further analyzes the inside mechanism of formative judgment directly leading to real rights change by interpreting the logical relations of formation right and formative power. Besides, it also interprets the four formative judgments which can directly lead to real rights change one by one.Part Four analyzes the several special executive judgments in civil executive program and concludes that at the area of civil executive judgments, regarding to right of claim for money, executive judgment and its manner of execution can directly lead to real rights change only when the subject matter of enforcement is money, real estate or other proprietary rights. Besides, material bonded judgment and execution reversed judgment are also effective.Part Five analyzes the mechanism of arbitral decision directly leading to real rights change. The security characteristic of arbitral decision makes unauthorized disposal happens more easily and endangers transaction security, therefore, the drawings and objection register are put forward as remediation.In the end, the conclusion appeals the Supreme People’s Court to introduce relative judicial interpretation to stop dispute as soon as possible.