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Effectiveness Of Property Announcement On

Posted on:2014-07-10Degree:DoctorType:Dissertation
Country:ChinaCandidate:G H JiangFull Text:PDF
GTID:1226330425968239Subject:Civil and Commercial Law
Abstract/Summary:PDF Full Text Request
The first part introduces the reasons of choosing the topic, research significance, research status and research methods. The patterns of property transference have three patterns:consensualism, the property formalism and creditor’s rights formalism. The effect of property publication have two models of the defensible mode of publication and the creation mode of publication. The attitude to the pattern of property transference and the effect model of property publication can be divided into three groups:property publication opposition group, in the absolute minority status. The formalism of credit group, the number of supporters is huge. The formalism of property group, is gradually growing stronger. The evaluation of some Chinese scholars was obviously biased. Their one-sided understanding has violated the legal logic.The second part briefly describes the relationship between the property transference and the property publication. According to the meaning and form factor of the property transference, the pattern of property transference can be divided into three patterns:consensualism, the creditor’s rights formalism and property formalism. The effect model of property publication is divided into the defensible mode of publication and the creation mode of publication. The property transference is observed by the pattern of property transference and the effect model of property publication from a different perspective. To observe the changes in the pattern of property transference internal party relations from the angle of property, publicity effect is observed from the external relations of things when the right changes. Before the property law promulgated, property transference pattern established by the general principles of the civil law is interpreted as creditor’s rights formalism, this interpretation is not accurate, it should be interpreted as consensualism. The real right change mode established by Property Law has a dualism of property publication validity doctrine and property publication opposition doctrine.The third part analyses the various effect of publication. The valid of publication is limited. Delivery or occupation is invalid. As to the real right of movables, in the publication validity doctrine, neither delivery nor occupation determines the change of real right and the ownership of property. The effect of delivering the immovable property is not universal. The property law of our country doesn’t all adopt registration effectiveness, but partly adopts the registration effectiveness, partly adopts effective opposition, and even consensualism which registration has no defensible validity. The determination of immovable property registration has a lot of exceptions. There is an exception which clearly outlines in the property law that property transference doesn’t adopt the registration effectiveness. There are more exceptions of immovable property even the property law has adopted registration effectiveness. The exceptions of registration determination including:Property unregistered has obtained property or obtained property in disguised form. And the registration has changed but the property does not change. Although adopting registration effectiveness, the proper obtainer is another people, not the one who register the property right. By teasing out, there are more than twenty kinds of exceptions. The defensible validity of publication of property right means that property right has the effect oppose to the third party when it has been publicized. Without the publication, the property right doesn’t have opposing effects to the third party. The defensible problems not only exist in defensible mode of publication but also exist in publication validity doctrine. There are two kinds of situation which property right is not publicized. One is to obtain property right and has not yet been publicized, another is the property right has been obtained and publicized, but later it lost its publication. It is not without limitations that no registration of the third party which cannot be resisted. There is the third party which can be opposed without publication or absolutely cannot be resisted, except the third party in good faith which cannot be resisted without publication. In the publication validity doctrine, the real right cannot resist the third party even if the publication is wrong and leads to the case when the publicized property right does not match the real right. Confrontation is the basic problem that the property publication cannot avoid, the basic effect of publication is confrontation. Publication presumption is a kind of effect which publication has regardless of any mode of publication effect. The presumption of possession can be recognized whether delivery is not adopted to be effective or adopted to be effective. For the establishment of the registration system of movable property, such as registration of motor vehicles, ships and other known as the quasi-real property, possession still has right to presume. For immovable property, Germany and Switzerland stated the presumption of registration, while France and Japan does not stipulate presumption of registration. Some scholars believe that some immovable property has no presumption of rights when it is registered as opposed elements of the property transference. And some scholars believe that whether in French civil law or Japanese civil law, both the registration of immovable property and the possession of movable property can use the right presumption rules. Presumption right of the registration book includes positive effect and negative effect, while the right presumption of possession only has the positive effect, and no negative effect. The right presumption of possession is only good for the possessor, and is mainly the ownership presumption. But the presumption of rights of immovable property registration book including the positive and negative presumption, that may be good for the register or not. And it also includes a variety of other immovable property in addition to ownership. The presumption of rights is just a "presumption", not "determined", it can be overthrown by evidence which anyone claims to. Presumption is a procedure specification which makes an inversion of the burden of proof. It mainly plays role in the litigation, relieving the proof obligations of publication obligee. On the contrary, people who doesn’t admin the registration is correct should prove that the registration is not correct. When the presumption of rights could not be overthrown by the plaintiff, the presumption of possession rights does not make the possessor obtain the right. When there is no right but the appearance of right, credibility makes others believe that the people has right to get right because of the appearance of right. There are two standard of bona fide credibility, according to the German standard, it can be exclusion of bona fide third party that only objection registration exists on the register book, or the third party clearly knows that the register records is not correct. Even if the third party should know but doesn’t know for gross negligent, it is still regarded as bona fide under protection, this can be named absolute credibility. According to Swiss standard, the good standard of immovable property acquired in good faith is the third party doesn’t and shouldn’t know, this can be named the relative credibility. The relative credibility is bona fide acquisition. As to the relationship between the validity of property publication, determination, presumption and credibility are conflicting. And the resistance is the basis of presumption and credibility, and the presumption is the logical result of resistance, the credibility is the logical result of losing resistance. Japanese civil law does not admit the credibility of registration, in fact this means immovable property right which lost registration can resist the third party, and no registration can resist others.The fourth part analyses the logic and jurisprudence of the effect of publication. Differentiating the internal effect and external effect of the property transference is the logical starting point of the defensible mode of publication. And it is reasonable and practical. Realizing the unification of internal and external effect of property right is the logical starting point of the publication effect doctrine, and it is unreasonable and difficult to achieve. The structure of the defensible mode of publication is:agreement is the cause of property transference, and publication can resist the third party, but not the opposite. The third party can obtain the property right in good faith based with the trust of publication. The logical structure is completely autonomous. The defensible of publication can be applied to property transference which doesn’t accord with law behavior. The operation system of publication effect doctrine attempts to construct is: through the legal rules of effect of publication, to achieve that internal relations are consistent with external relations of the property transference, and thus realize transaction security and the value which other laws pursuit. Under this system, the parties reach a consensus of property transference, but if there is no publication, the law will not admit the consequence of the property transference. The consequence of the property transference produces only when the parties reach a consensus of property transference and has carried out publication. In turn, there is publication as long as the property transference. When the internal validity and external validity of property right unify, the third party can transact with others only trust the publication. But that cannot be fully achieved, and paradoxes will inevitably occur. When the parties deliberately register the property right in the name of others, the registration effectiveness is in logic dilemma. It is not sure whether accept the registration or the will of the parties to determine property ownership. If admit the registration, it does not accord with the true meaning of the parties. And if admit the confirmation of the ownership, it is inconsistent with the registration. The effect of delivery of movables property has inclined to the meaning doctrine due to admitting the effective concept delivery. The exception is also very much in the effect of the delivery of immovable property. The publication effect cannot be logically consistent. Some viewpoint about property right is a one-sided view. Cannot resist is not equal to cannot exclusive, cannot resist does not mean cannot in rem. There are many property rights which cannot resist the third party in the publication effect theory. The publication effect and the property rights statutory are not related with each other. Whether it is publication resist, or publication effect, it does not increase the type of property right and does not change the content of the specific property right. Publication credibility and the publication effect contradict on the logic, is the logical result of registration confrontation. The accusation that publication resist cannot reasonably regulate the double transfer is not true, and it is the publication effect encourages more properties being sold twice. The ownership reservation is to decide the ownership of property right depending on the meaning of the parties, rather than depending on whether there is a publication. It is a manifestation of the consensualism. Strict publication effect goes against the supreme principle of autonomy of civil law. Publication confrontation and the simultaneous performance are not contradictory. Whether quote changed circumstance is irrelevant to the publication effect and the publication confrontation.The fifth part evaluates the legal value of the publication effect mode. Publication effect is not better than publication confrontation about fairness and justice. Publication confrontation gives the parties the right to choose when there is not involving the third party, there is no injustice. And the publication effect deprives the parties the right to choose is the source of injustice. The publication effect leads to possession or damage when buying and selling the object and the assignee has little recourse. The registration effectiveness makes the buyer cannot use the unregistered immovable property to do financing and the buyer’s exchange of interests cannot be achieved. In registration effectiveness system, when the buyer hasn’t obtained the registration, if the seller is misfortune and without heirs, the buyer would be embarrassed and cannot obtain ownership with registration through legal ways. When refers to the third party, publication confrontation gives the buyer the property before he obtains the registration, even if he cannot resist the third party, at least he can enjoy the property. Although he cannot resist the third party with goodwill, at least he can resist the malicious third party. Whereas the effective registration doesn’t admit the buyer has obtained the property, the buyer is still a creditor and cannot resist even the malicious third party. There are a lot of people buying immovable property and selling it before obtaining the registration, this is not allowed in the effective registration system and is unfairness and unjust, it gives an opportunity to people without credit to deny the valid of contract. About the maintenance of transaction order, the scholars of publication effect believe that:the dislocation of the nominal obligee and the real obligee created the third party in conflict, and will inevitably lead to disputes, then affect the normal order of property right transaction. That means the effective registration is not more effective than the registration confrontation. In the effective registration system, the parties will register in order to obtain the property right. In the registration confrontation system, the parties will also register to safeguard the acquired property right. The buyer really worried about the property security, the will to protect the property safety prompts the parties to register in time. The registration effectiveness is not better than the registration confrontation when it makes the parties actively register and it is impossible to make sure a stable transaction. Immovable property transactions registration and no registration no disposition will do harm to the transaction order. Because it encourages the double disposition and deny of contract valid, and leads to the property transference, the chaos belongs, transactions with many twists and turns, complicated legal relations. And the cognition which believed the publication confrontation cannot protect the safety of transactions is a miscomprehension of the publication confrontation. The publication confrontation can and should give the registration the credibility.The sixth part discusses the relationship between the effect of publication and the property right behavior theory. The property right behavior theory including three parts:the principle of distinction, the principle of non-reason, the principle of formalism. The standpoint of no property right in consensualism and the publication confrontation is concluded from the one-sided interpretation of consensualism. The consensualism doesn’t means the property right changes as soon as the contract for credit comes into effect, but means the property right changes depend on the agreement of the parties. The time of agreement changes can be the contract effect time, the delivery time, the payment time or any other time. The meaning of credit can only cause a claim, it is unlikely to be a cause of property transference. Only the real meaning of property right can cause the property transference. In the publication confrontation system, the cause and result of the property transference can be distinguished, and the act of liability and act of disposition can be distinguished, and credit right behavior and property right behavior can be distinguished. Property law clearly stipulates the principle of distinction, end the phenomenon which didn’t admit the principle of distinction in China. The principle of distinction in property law not only be explained to distinguish the cause and result of the property transference, and also should be explained to distinguish credit right behavior and property right behavior. And the scope of application of the principle of distinction should include the registration effectiveness part and the registration confrontation doctrine part. Publication confrontation and principle of non-reason does not logically conflict, but the latter protects the malicious third party not the transaction security, so it should not be adopted. Whether the publication confrontation and the principle of formalism can be compatible rests with the entirely equivalence of the form and means of property right publication. If we admit the separation of form and publication, we can use publication confrontation in the formalism. For instance, come into force after delivery, the registration confrontation.The seventh part discusses the development of the theory and system reconstruction. The formalism of creditor extremely denies the intention of the parties from the meaning elements part, is completely different from the consensualism. In the aspect of form factors, regarding the delivery and registration as a fact behavior, is absolutely different from regarding them as a meaning of the party’s property transference, whether in theory or in legal effect. They cannot be compromised. The real compromise is the property right formalism. Some scholars of the creditor’s rights formalism theory claim that their theory can overcome the shortcomings of consensualism, some are not shortcomings, some are inevitable both in the publication effect and publication confrontation. The formalism of creditor does not respect more for the parties than the formalism of property right. It is not a shortcoming that the formalism of property right distinguishes between the meaning of creditor and the meaning of property right. The harm of the principle of non-reason has been exaggerated, and it isn’t necessary to admit the principle of non-reason when adopt the formalism of property right. The formalism of creditor did not adopt the advantages of the consensualism and formalism of the property right, In the theory of property right act, the principle of distinguishing the creditor’s act and the property right act is valuable both in theory and in practice. It helps to perfect the legal system in theory, determine the standards to distinguishing the act of debt and act of disposition and properly dispose the matter of unauthorized disposal in practice. It should be inherited and perfected. In reality, there may be less likely that the creditor act is invalid and the property right act is valid with the principle of non-reason of property right act. So the range of using the principle of non-reason to protect transaction security is extremely limited. In some extremely conditions, the third party who is protected may be a malicious one. The principle of non-reason isn’t of great value, so maybe it should be abandoned. The formalism would better not be insisted any longer, but it can inherit formalism by expanding its types in the case of weakening the form elements. Because the pattern of property transference formalism in our country has been generally accepted by mainstream scholars, administrative departments, judicial departments. As for the immovable property, delivery of immovable property, registration certificate of delivery, and notarial certificate and other things which can show off the meaning behavior or way of the property transference between the parties to be the form of property right alternation, except for the form of registration. The reconstruction of our rules of property transference, should distinguish the form of property transference and publication of the property right. To determine the rules of property ownership and usufruct alternation, there are three paths to choose from:First, agreement comes into force, possession or registration confrontation, which is the defensible mode of publication under the consensualism. Second, come into force after delivery, possession or registration confrontation, which is the defensible mode of publication under the formalism. The delivery includes the concept of delivery. Third, maintain the registration validity doctrine, establish possession system, that is the effective registration, if there is no registration but has possession, it can obtain the possession of the property right. As for mortgages, the mortgage right which has not registered still has certain benefits, such as:it can resist the malicious third party, it can make the mortgage take effect as soon as possible to financing rapidly and it can use the immovable property which has not obtained registration for mortgage to financing. So it is appropriate to adopt the validity of agreement and registration confrontation. The pledge of movable property is established on the condition of possession, and is valid only after delivery.
Keywords/Search Tags:publication effect, the defensible mode of publication, the creation modeof publication, consensualism, formalism, theory of juristic act ofproperty right
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