The Protected Third Party Under The Registration Antagonism Of Real Right

Although the Property Law of the People’s Republic of China stipulates the real right of special movables, right to the contracted management of land and easement rights adopt the registration antagonism on alteration of real right, it does not give detailed explanation of the third party, which leads to a series of arguments in academia and a lot of problems in practice. In Japan and France, the alteration of real right depends on the true will of parties, and uses the publicity as the element of antagonism, which has great significance to build our own system of registration antagonism. This paper intends to combine the existing civil law system in our country to do comparative law research into registration antagonism system of Japan and France. Based on the analysis of legal constitution of this system, this article will discuss how to define the protected third party of registration antagonism in the objective and subjective aspects in our country, and do research into detailed scope of it.This paper will be divided into three chapters. By demonstrating that registration antagonism is of great significance to balance the benefit between the parties and the third person, and to adjust the relationship between autonomy of will and transaction security, chapter one analyzes the legal constitution of registration antagonism, which means the good faith of the third party makes up the lack of right of disposition of nominal registrar in transfer, and the second transfer contract is valid. When neither side is registered, the first assignee and the second assignee (the third party) have equal status, and neither has a confrontation effect to each other. The person who registers first obtains confrontation.From the objective element and subjective element, chapter two discusses how to define the third party. Part one discusses the necessity of restricting the scope of third party. By introducing correlated theories, part two reaches a conclusion that parties who are mutually exclusive for obtaining real right on the same subject matter, or whose real rights can exist at the same time on the same subject matter, but mutually exclusive in the realization of the real rights, if their real rights use registration as an element of antagonism, are third person to each other. Through comparing the good faith and bad faith, bad faith and the perfidious malicious, good faith and goodwill and no fault (or no gross negligence) in the subjective element of third parties, part three discusses that the third party should be good faith, excluding the bad faith.Chapter three analyzes several kind of controversial creditors or property holders, discusses the detailed scope of third party, and draws the conclusion that the lessee, general creditor, specific content creditor, bankruptcy creditor, successor and legatee are not the third parties under the registration antagonism of real right, but the sub-purchaser of the second assignee is the third party.