Bona Fide Acquisition Of Immovable Property

Bona fide acquisition is an important part of modern civil law right in rem system, which refers to protection for static security of civil law property right and moving security of property transaction by sacrificing static security of property to protect moving security of property. There is no dispute ever on bona fide acquisition appliying to chattel, while legislations of states differ from on whether it applies to real estate. Different viewpoints also exist in theoretical circle in China. As we all know, real estate plays a significant role in national economy and people's life. It is expecially important to employ bona fide acquisition system in order to stimulate circulation of real estate, maintain transaction security and stablize social order. Hence it embodies to some extent theoretical and practical meanings to probe into the system of bona fide acquisition of real estate. As for modern bona fide acquisition system, its theory must be based consolidated on the principle of public summons and public trust rather than to try to find out any systematic or theoretical support in outdated origin. Only in this way its inherent defects could be eliminated, which no doubt contributes to achievement of the goal to protect transaction security. The system of bona fide acquisition of real estate just resorts to public trust of the real estate registration to realize its objective of maintenance on transaction security. Right and duty relatioinship of parties could be defined and dealt with correctly via the principle of public summons and public trust as registration right conforms to actual right. In the common life, however, it is beyond possibility to avoid the occasional flaws in the registration of real estate no matter how perfect a registration system is. How to coordinate the right conflict among subjects of right, expecially the conflict between original obligee and third person in good faith, which are the very problems we be confronted. The article intends to compare two distinguished opinions popular in the theoretical circle of China on whether bona fide acquisition could be applied to real estate, and furthermore to reveal the nature of such controversy by description on concept, nature and origin of the system of bona fide acquisition of real estate. The author will inspect the civil legislation and judicial practice of main states belonging to common law and civil law respectively relevant to bona fide acquisition of real estate and then to point out whose legal basis could be acquired direecty or indirectly in the civil legislation and judicial practice of these main states. In addition, the article will focus on theroretical, systematic and practical base of bona fide acquisition of real estat, hereby discover its necessity and rationality, on the basis of which, further analysis will be rendered to improve its theroretical connotation on constitutive requirements and legal effect of bona fide acquisition application to real estate. Final attention will be paid to some problems pertinent to bona fide acquisition of real estate and to the improvement of real estate registration system so as to coordinate their relationship with the system of bona fide acquisition of real estate. Except for introduction and concluding remarks, the article consists of six parts as follows:The first part addresses in detail the concept, nature and origin of bona fide acquisition of real estate and pro and con view popular in the theoretical circle of China on whether bona fide acquisition could be applied to real estate as well, meanwhile respective evaluation of the view will be introduced.The second part deals with the comparison between civil law and common law with respect to legislation and judicial practice of bona fide acquisition of real estate. Additionally, the evolution of judicial practice of bona fide acquisition of real estate in China will be introduced thereof.The third part proposes the theroretical, systematic and practical basis of bona fide acquisition of real estate. Logic reasoning for aforesaid basis justifies the principle of public summons and public trust constitutes the theroretical basis for bona fide acquisition of real estate. Three types of real estate registration systems will be refered to and the author will take further step to verify the point of view that it is different real estate registration systems that cause the applicablity of bona fide acquisition of real estate distinguishes from countries. Under the formal examination pattern of registration, registration bears no public trust and the public could not rely on registered right was the genuine condition of the right, there is certainly no possiblity to apply to bona fide acquisition of real estate. On the contrary, under the essential examination pattern of registration, real estate registration bears public trust and the public could rely on registered right was the genuine condition of the right, which just underlies bona fide acquisition of real estate. At the end of the part, the author puts forward the situation registered right was inconsistent with actual status of right in the reality exactly proves the real existence of practical basis for bona fide acquisition of real estate.The fourth part addresses constitutive requirements of bona fide acquisition of real estate on the basic point of Article 106 of "Property Law of China", including unauthorized disposition, goodwill, compensable transaction act and such act having registered. Meanwhile, the part makes some analysis on legal effect brought about by bona fide acquisition of real estate.After comparison and contrast between the system of bona fide acquisition of real estate and other related system such as the realty right of preemption and property right change of non-registred housing, the fifth part makes clarification against some misunderstandings regarding to application to bona fide acquisition of real estate and resolves apply boundary issues emerging in juducial practice as employing bona fide acquisition of real estate.The author comes up with in the sixth part that bona fide acquisition of real estate is set up on the basis of reliance on the accuracy of registration. With good real estate registration system a balance between property right of real estate and bona fide acquisition of real estate could be acquired. Sound registration system could not only reinforce public trust in registration to protect third person in good faith and transaction order but also keep real obligee from unwarranted infringement. So the author embarks from the legislative shortcomings of real estate registration system in China, puts forward some measures to improve it and some remedy measures against it.