On The Change Of Real Right Of Realty

The enactment of "Real right Law" is a milestone in China's legalizing process. From a structural point of civil law, the macro-significance of "Real right law" is that, on one hand, it recognizes the status of real right in legislation and, on the other sets up the basic structure of China's civil law in which the property right is divided into real right and obligatory right. In light of this, the "Real right law" in china extracts experience from other developed countries and areas which adopt the civil law system around the world. Real right law is the law represents the most nationality. The real right law in certain country will lively reflect the country's ethnical gift, tradition, custom, political system and even thinking method about law and right. The structure and nationality of the"Real right law" in china will surface in the whole discussing of the theory of the change of real right of realty in this article. And how to harmonize a self-enclosed system of the structuralism with the social problems due to national differences which can not be included in the system is the key point of the law relating to the change of real right of realty.Mencius said"persons with immovable property are persons of perseverance". As the most typical" immovable properties", realty and it's change affect the social and economic operation of a country to a great extent and influence everyone's life of an era.In accordance with China's Real right law, starting from the introduction of the basic concept and meaning of the change of real right of realty, the author discusses in depth the advantages and disadvantages of the modes about real right change in several main countries. Based on other countries'experiences and the social situation and judicial practice in china, the author presents his opinion about which mode should be adopted by china. After discussing the change of real right of realty based on juristic acts, the author tries to clarify the theoretical relevancy between realty leasehold and realty acquisition in good faith arising from transaction. Apart from transaction, there are other means leading to the change of real right of realty. China's increasingly serious situations of urbanization correlate closely with the change of real right of realty which is not based on juristic acts. In addition, real right change on illegal buildings are also puzzling questions in China's legal study and judicial practice, and this article will have an empirically detailed analysis on that.The article consists of six chapters.Chapter 1 On the basic theory about the change of real right of realty. Real right change is a kind of civil right alteration. It is the core issue of real right law. The theory of the change of real right of realty is related to the principles in the creation, alteration, and termination of real right of realty, aiming to explain the dynamic phenomena of real right of realty. From the development of real right law, there is a trend of mutual penetration and transformation between the laws of realties and chattels. For realties, the trend is an adjustment step by step from strictly limited one in early days to easily-alienated one; for chattels, it aims to apply the rules of realties to protect those chattels of great worth.According to different reasons of real right change, and from the principle of autonomy of the will, the change of real right of realty can be divided into two kinds, the first are those based on juristic acts, and the second are those arise from other reasons besides juristic acts. The former is transferring the real right from one to another mainly through purchasing, endowing, exchanging and other juristic acts, and accordingly results in terminating the real right of the original holders and the acquiring of real right by the assignees; The latter includes the alterations based on the direct provisions of law, the court decisions and enforcements, government directives, inheritance, factual behaviors and so on. In the case of the former, the registration and delivery and other promulgation methods are effective conditions; while in the case of the latter, there are usually special provisions in the law, as long as the legally stipulated facts occur, real rights are created or terminated.Different philosophies will have different value orientations. In modern real right law, the purpose of the change of real right of realty is pursuing the balance among several principles, such as autonomy of the will, security of transactions, making the best use of resources , and the state intervention.Chapter 2 On the real right change modeIn this chapter, the author studies the realty change in Roman Law and Germanic Law in legal history, and also discusses several real right change mode: the doctrine of changing real right by only will, the doctrine of changing real right by real right act, the doctrine of changing real right by will and formality and real right change in Common Law. The author focuses on introducing the statutes, the political and economical principles, the fundamental jurisprudence thoughts and underlying values of different modes, and tries to offer related theoretical materials for the following discussion about the real right change mode.Chapter 3 On the real right change system in the current legislation in chinaThe author advocates that the Real Right Law in China adopts the dual mode on real right change, which means the doctrine of changing real right by will and formality is applied on principal. The parties'agreements only give rise to certain obligation without the effect of real right change, and only combined with the registration, it will cause the change of real right. As an exception, there is a supplementary stipulation on the doctrine of registration-publication mechanism in the Real Right Law in china. In certain situation, parties may acquire"real right"without registration, but if a third party have gone through some registration formality on this real right, then the formal one will no longer be able to get the real right, and the third party will acquire the real right. Registration-publication mechanism in the Real Rights Law of China applies in the rights to the contracted management of land, the right to use house sites and easement.The real right change mode is quite controversial among the scholars relating to civil law because of different understanding of the theory of real right act. The author argues that the doctrine of changing real right by realty contract emphasizes the existence of real right act, but despite the very existence of the real right will. The will of changing real right which isolated from the parties'obligation agreement is just scholars'fiction. The flaws of the real right act lie as the following. Firstly, the over-abstractiveness contradicts the common practice in a society and complicates social life and thus, impairs the convenience and efficiency of transactions. Moreover, under this doctrine, the independence of real right act will develop further into the Reasonablelessness of the real right act, namely, the efficacy of real right act will not be affected by relevant obligatory acts, therefore it is hard to strike a balance among relating parties. Thirdly, with the development of promulgation system, the system of realty registration for example, and the maturity of the system of acquisition in good faith, transaction can be secured even without admittance of the doctrine of real right act. All the above mentioned factors render the doctrine of real right act no longer as requisite as before.Comparatively, the doctrine of changing real right by will and formality conforms to the tradition of legislation in china and combines the advantages of the doctrine of changing real right by will and the one of changing real right by formality while discarding the disadvantages of the both systems. It evolves from the formal system relating to real right change, and is easier for public and law enforcement staff to understand. Therefore, we should take this doctrine, and according to the legislature work of the Real Right Law in china, it seems like we do.Chapter 4 On the principles of promulgation and accountability on the real right change of realtyThe registration, as a method of the promulgation of real right of realty, plays an important role in the change of real right of realty. It is the core of system relating to the change of real right of realty.There is no conclusion in academic circles that the registration in China is an administrative act or civil act, but generally, it is considered as a civil act on the basis that the registration has a feature of private law. However, if the registration is only considered as a civil act, it is hard to explain why there are lots of administrative litigations relating to the requests to rescind registration. In the perspective of the author, in theory, it is not the only option for the parties to take the system of civil rights confirmation as the remedy to correct the errors or omissions of the registration, because the rights of the parties to choose the administrative litigation as the remedy have not been excluded by the procedural law. From the practice, however, solving all the disputes similar to the registration errors and omissions through the litigation would exaggerate the judicial process's capability to end the dispute, which is also inconsistent with the reality of the judicial practice in china. In this article, the registration is considered as a composite act with the nature of both administrative act and civil act.There is no effective registration of realty system with the promulgation effect in the history of Chinese legal system. Real Right Law in china has attracted a lot of attention for its initial establishment of registration system with the modern sense. For these reasons, this author will consider creatively of the improvement of the registration system in China such as the scope, organ, substantive examination of registration, the scope of the promulgation and so on.Chapter 5 On the related civil law system on real right changeIn a market oriented economy, the main purpose of transaction is the circulation of commodities. Based on ownership, the purpose of transaction extends to the acquisition, alteration and extermination of real right and obligatory right. Some scholars calculate this to disposition. Goods transaction, lease and unqualified disposition are examples that would have effects to real right change, which demonstrates as realty lease right turning to real right and the system of acquisition in good faith.As a special obligatory right, the lease right is provided with effect to everybody in the modern legal system. The principle of "Sales can not Devastate Lease" is the typical form of lease right turning to real right. In the author's opinion, in order to protect the right of third party, the lease right promulgation system should balance the rights between tenant and bona fide purchaser. The author, taking a practical example of realty lease right of preemption in judicial practice, described the theory of the realty lease right turning to real right as well as its relevant limitation, and discussed the influence of lease right on the real right change of realty.The system of acquisition in good faith has been admitted by both legal systems, but in terms of realty, there are differences, under the doctrine of changing real right by will, realty can not be subject to the system of acquisition in good faith because the registry of realty lacks the accountability. Under the doctrine of changing real right by will and formality, the values underlying the law are the certainty and safety of transaction; therefore, despite the possible flaws in the promulgation, it is necessary to admit the system of acquisition in good faith.Chapter 6 On the practical meaning of the change of real right of realty during the urbanization process in ChinaDue to the complexity of social life, apart from the typical type, the change of real right of realty by reasons besides juristic acts are very popular in the wide-spread urbanization process in China. Instead of taking promulgation as its valid condition, this kind of change generally takes effect directly according to statutes or the accomplishment of certain factual conditions. Under the doctrine of changing the real right by registry, this kind of change, which is against the registry system of realty, will be regarded as an exceptional example. In order to save the over strictness and frigidity of the doctrine of changing real right by real right act, it is necessary to recognize the effect of this kind of change of real right. Moreover, this kind of change initiated generally for some reasons relating to public law, therefore it has a very strong efficacy which even be able to overtake the promulgation efficacy from registration.Have paid close attention on the land transformation in the urbanization process in China, Shenzhen particularly, around 2004, the author in this article has found that the real right change of land in rural area by reasons besides juristic acts are very necessary for accelerating the process of urbanization. After comparing the nationalization reform and Land Expropriation System, the author tries to suggest the practical solution for legal dispute on real estate after the change of real right of land.As a special kind of realty, Illegal buildings have become one of the main obstacles for the process of urbanization. The questions of whether there is a"quasi-ownership"on the illegal buildings and whether it can be traded and therefore has the effect leading to a change of real right of realty are widely discussed and very controversial. Some scholars view that illegal buildings, even without the license of building, conform to the necessary conditions of attachment on land, therefore, they are realties independent from land, and as a result ,they are qualified to be the subject of real right, and the ownership of them should belong to the original builders. Distinguished from the above view, the author in this article asserts that, given the present situation of legislation in china, illegal buildings should not be entitled as the"quasi-ownership"no matter theoretically or practically. Taking the jurisprudence and the social reality into concern, Courts shall make judgments discretionally and reasonably on the basis of balancing the public interests and private benefits. The author holds the view that the general principle applying in this kind of litigations should be protecting the lawful right and interests of the bona fide third parties without negligence while setting aside the claim for benefits on illegal buildings...