Research On The Changes Of Real Estate Right Caused By Legal Instruments

Article 28 of China’s property law establishes a system in which legal instruments in force can directly cause changes in real property rights,which is an exceptional model of changes in real property rights.This exceptional model is an effective component of real property changes caused by non-legal acts,and is more common in judicial practice.However,because the law does not specify what type of legal instruments can cause real estate rights to change,the understanding of the theory is controversial,which leads to doubts in the application of the practice.Through the analysis and research on the existing theories related to the changes of real estate rights caused by legal instruments,it is explored that the system theory can also be interpreted from two levels: private law and public law.At the same time,after summarizing and discussing the nature and content of different litigation legal instruments,the scope of legal instruments that caused the change of real estate rights was analyzed,and the legal litigation instruments that could cause the change of real estate rights were included in the formation of judgments and rulings Based on the type analysis of the legal instruments in specific cases,it is proposed that the common types of legal instruments are judgments and rulings for the division of joint real estate cases,judgments for rescinding contracts and judgments,and judgments for revoking the debtor ’s damage to the creditor ’s rights.A written ruling on the auction transaction and a ruling on compulsory debt for property.In addition,due to the acquisition of real estate rights by legal instruments,the current law ’s free registration position will lead to a large number of unregistered cases in practice,resulting in the separation of factual property rights and legal property rights,which in turn leads to a relationship between registration credibility and referee credibility Tension and the negative impact of severe tests on enforcement,and the reduction of negative impact requires the establishment of a synergy mechanism between law and justice to improve the risk awareness of de facto property owners,and legislation and justice to advance the registration linkage system.Based on the above ideas,this article is divided into six parts for research:The first part is an introduction,which analyzes the provisions of the current law on changes in real estate rights caused by legal instruments,points out that the current legislation has ambiguities and imperfections,causes confusion to the application of the law,and negatively affects the operation of the system.The research questions determine the research object,and comb through the relevant literature to further determine the research direction.The second part is the theoretical basis for the change of real estate rights caused by legal instruments;first,through analysis and research of existing relevant theories,it puts forward views that should also be interpreted from the two levels of private law and public law;second,the legal instruments and laws The comparison of real estate rights changes caused by behaviors,to find out the difference between the two,and lay the foundation for the later part of the discussion.The third part is the scope and reasons of the legal instruments that directly cause the change of real property rights.After summarizing and discussing the nature and content of judgments,rulings and mediations,the scope of legal instruments that change the original property rights relationship is determined,and Litigation legal instruments that can directly cause real estate rights to change include the formation of judgments and the formation of awards.The fourth part is the typological research on the legal instruments that cause the change of real estate rights.This part is based on the third part and combines with Article 7 of the Interpretation of the Supreme People ’s Court on Several Issues Concerning the Application of the <Property Law of the People ’s Republic of China> The types of legal instruments that can cause changes in real estate rights in specific cases are analyzed and listed.The fifth part is the registration of changes in real estate rights acquired by legal instruments.First,through analysis of the current law,it is concluded that the current law adopts a free registration position for the acquisition of real estate rights due to legal instruments,pointing out that this position will lead to de facto real rights Separation from legal property rights,which in turn caused a certain negative impact;Secondly,the specific negative impact was analyzed to lead to the tension between the credibility of registration and the credibility of the referee and a severe test for enforcement;finally,the establishment of a legislative and judicial synergy mechanism was proposed to Recommendations to reduce negative effects.The sixth part is the conclusion,which is a summary of the previous points.The innovation of this article is to challenge the existing judicial interpretation.The proposed mediation and voluntary debt-for-debt rulings do not exclude the legal instruments of the parties ’autonomy.Property rights change rules.