A Research On Legal Documents Causing Changes Of Real Right

According to Article 28 of the Real Right Law of the People's Republic of China, the changes of real right induced by the legal documents of the court or arbitration committee shall take effect upon the effect of the legal documents, which do not need public notification. From view of interpretative theory, defining the types of the “legal documents” considering the purposive interpretation in narrow sense conform to the law. Defining the “legal documents” with theory of action of formation is feasible. Judgments and awards of cancelling or modifying a contract, dividing the property in common shall lead to the changes of real right. But defining the “legal documents” only with theory of action of formation will make the range of “legal documents” narrow. Defining the “legal documents” based on the public power that legal documents reflect is another way because the theoretical basis of the changes of real right induced by legal documents is the implement of public power. The legal documents causing the ownership vesting in country or collectivity, conciliation documents, rulings confirming the completion of an auction and rulings on forcible debts payment in kind during the procedure of compulsory execution shall lead to the changes of real right because they reflect the implement of public power. Conciliation documents should be that supporting the right of formation of the plaintiff. But conciliation is not suitable for action of formation in principle, so this kind of conciliation documents does not exist commonly. The real right which obtained through legal documents is not effective to the third party acting in good faith and is suitable to Bona Fide Acquisition. Before disposition of the real right, the proprietor should take real estate registration.