| Within the field of civil law, the untitled property disposal is an essential and fundamental issue. With regard to the issues involved within this subject, the legal validity of untitled property disposal contract is the most controversial problem. In different modes of property right alteration, the definition of untitled property disposal correspondingly varies from different criteria of‘disposal’. Under the Doctrine of Autonomy, disposal denotes the contracting conduct, which is the so-called contract, so the corresponding disposing with no right refers to concluding contract with no right to dispose. Under the compromise doctrine , disposal means contracting conduct as well, the counterpart disposing with no right is concluding contract with no right to dispose. The untitled property disposal means that the transfer of property without due right. Under the Property Formalism, dispose refers to meeting of minds rather than burden conduct(contract), thus, the so called‘dispose with no right’means having no right to dispose. Within various modes of real rights transformation,‘dispose with no right’do not mean the same issue. It is impossible to make comparison among those different definitions. Only if we get rid of the restrain of various definitions of modes of real rights change can we complete the comparative law research over objects with same and similar functions and targets. Under any mode of real rights change rule, the contract that taking real right transfer as target and the leistungspflicht as effect does exist. The such contract give rise to the lawful effect of change of real right through mode of real right change. Within any mode of change of real right, the effect of real right change shall not take place if such conduct was dispose with no right. However, one problem, that what would the effect of contract concluding by parties with no disposing right be, appears is worthy of research. The reason is that, effect of the such contract shall evolve the issues of remedy and protection of contracting parties no matter which mode of real right change rule involved. Moreover, reliefs and protections provided to parties are the fundamental functions of civil law. Thus, effect of contracts concluded by parties with no disposing right but with the same functions and targets shall be the object of study.While committing the investigation on various modes of real right change rule, and force of contract having no right to dispose within civil law countries, we try to compare and analyze the remedies and relief effect to contracting parties with no disposing right of each country. Presuposition of this comparative analysis is that, under the general circumstances, performing benefits and interests resulting from the liabilities of breach of contract due to the validity of contract having no right to dispose shall be stronger and stem from the reliable benefits and interests of nullity of the contract. During the comparative research on force of contract having not right to dispose within various mode of real right change rules, we found that, under the doctrine of autonomy, contract concluded by parties with no right to dispose shall be considered as null and void. Under the compromise doctrine and property formalism, contract having no right to dispose shall be valid. With regard to the issue of remedy provided to the parties, the reliefs offered by real right law are similar, mainly is the bona fide acquisition. So, the variation on effect of real right remedies do not exist. On the other hand, logically speaking, as to the remedies from the perspective of contracts, France which adopts the doctrine of autonomy offered inadequate obligatory protection to buyers due to the reliable benefits. However, buyers obtained the quasi-remedy similar as which provided by the compromise doctrine and real right formalism within the mode of real right change rule, through the relativeness of nullity of contract with no right to dispose, and accompanied with the recovery guarantee. The above mentioned phenomenon illustrates that validity of contract concluded by parties with no right to dispose shall be various from different modes of real right change rule. However, different countries achieve the similar effect concerning the reliefs provided to contracting parties through different methods.Why does the same disposing with no right give rise to different force of contract under different mode of real right change rules? The reason could only be attributed to the mode of real right change rules, which means that force of contract concluded by parties with no right to dispose have relationship with the mode of real right change rules: Under the doctrine of autonomy of France, that expressions directly lead to the change effect of real right makes up the nullity of contract having no right to dispose; under the doctrine of Compromise in Austria, validity is different from the real right change, contracting conduct shall only result in obligatory relationship rather than the change of real right. So this feature decides that contract having no right to dispose shall be valid; under the real right formalism in Germany, that contracting conduct is different from the ius in rem, contracting conduct only give rise to burden obligation rather than the change of real right makes up the validity of contract concluded by parties with no right to dispose. We found that, through the investigation over the force of contract having no right to dispose within the three modes of real right change rules, mode of real right change rules decides the validity of contract concluded by parties with no right to dispose.Since, logically speaking, modes of real right change rules decides the validity of contract concluded by parties with no right to dispose, mode of real right change once selected, the corresponding force of contract having no right to dispose shall be presumed. This means that force of contract having no right to dispose merely is a result of logical derivation, only related to the mode of real right change but any other elements. This feature reflects the connection between force of contract having no right to dispose and mode of real right change which is that mode of real right change makes up the validity of contract concluded by parties with no right to dispose. However, the effectiveness of contract concluded by parties with no right to dispose mainly evolved the reliefs and protection to the contracting parties, which is an issue concerning judgment of value. The most primary criterion to judge the quality of laws and regulations concerning contracts having no right to dispose of any country shall be that whether or not the interests of relative parties involved in the contract could be reasonably arranged and settled, rather than the perfection of law system.With regard to the relation between contracting concluded by parties with no right to dispose and mode of real right in China, due to that the issue that mode of real right change rules decides the validity of contract having no right to dispose is the requirement of systematic logic of laws, as well as the premise of the mode of real right change rules set up by the law of Jus Rerem in China, it is necessary to investigate the mode of real right change established by the law of Jus Rerem. Jus Rerem in China establishes the multi-mode of real right change rules that taking obligatory formalism as principle. This multi-mode shall definitely bring up two problems: the first one is that whether this mode is consistent with the law system of our country; the second problem is that whether this mode is identify to the validity of contract concluded by parties with no right to dispose. Under the circumstance that real right and contracts are separated within our legislative system and law conduct set up by the general principle, the doctrine of autonomy is neither consistent with the legislative system of our country, nor suitable to the premise that law conduct set up within the general principle of our civil law; obligatory shall blend with the real right and contract separated system. However, interpretation that the law effect of real right change was attributed to the congranation of contracts、delivery and registration deduced the conclusion which goes against the basic regulation of legal conduct. Moreover, the pure admittion to contracting conduct endangers the value of general principles of civil law. Thus, obligatory formalism does not fit the law system of our country. The real right formalism is not only consistent with the legislative system of our country, but also to accommodate itself to the premise that general principles of civil law setting up the law conduct. So , this is the most appropriate mode of real right change for our country. We could imitate the mode of Switzerland and Austria to interpret the article 9 and article 23 of the law of Jus Rerem as the real right formalism to carry out the harmony with law system of our country. Since the mode of real right change is interpreted as the real right formalism, the contract that concluded by parties with no right to dispose shall, correspondingly, be valid. From the general point of view, the contracts regulated by the contract law of our country purely denotes the contracts, rather than real right contract. If , in the future coming civil code of our country , the traditional commitment shall be adopted, the article 51 of contract law might be abolished. We should regulate the real right contract concluded by parties with no right to dispose within the part of real right, and the force of such type of contract shall be unconfirmed. |
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