A Comparative Study On The Transfer Mode Of Property

As far as the form of legislation, it can be said that the socialist legal system including civil law system with Chinese characteristics has been formed by the end of2010, but it is still difficult to say that Chinese civil law system including the relevant legislation of transfer mode of property is perfect in the perspective of academic maturity and the correspondence between theory and practice. In order to avoid the law application chaos caused by Article51of "Contract Law" defines transfer right in the phase of personal action, the Supreme People’s Court maintain the validity of the no-right conveyance through passing "The Interpretation on the Law Application of the Trial of the Contract Dispute Cases" in2012. This means that it won’t require seller to have the transfer right in the phase of personal action, and virtually revert transfer right to be the right in the phase of real action, namely, confirmed the existence of a unilateral intention in the phase of real action. However, the above-mentioned Interpretation restore the true colors of personal action externalism not only subvert the traditional knowledge of mainstream scholars and legislators, and eventually led to the appearance of dilemma of Chinese transfer mode of property.To further demonstrate above points and investigate the problem of legislation choice of Chinese transfer mode of property, excepting the introduction and conclusion, the body consists of seven chapters. The part of introduction, after raising the subject, illustrates the main view and the main research methods adopted by the author. Chapter1clarifies the connotation and denotation of the transfer mode of property, and analyses real right action theory-the basis of breach between different transfer modes of property; from Chapter2to Chapter3, after the comprehensive comparison of the establishment process and the historical background of several transfer mode of property in two main law system, analyze the justifiability of the principle of distinction and the principle of abstract separately, the Ned-Kor mode is the most rational one from the point of application of proper law; Chapter4adopts the choice of Chinese transfer mode of property as the standpoint, takes international trade application as the visual field, investigate the transfer mode of property from the pure economics game theory to the nature of transfer right and then to the choice of legislative mode, the conclusion also supports above view; Chapter5and Chapter6discuss the status quo, causes and essence of dilemma of Chinese transfer mode of property at the present stage, and then try to construct practical argumentation platform through the application of non-formal logic methods, combining sociological empirical approach to promote us to go through the dilemma, and conclude that reasonable choice for Chinese transfer mode of property should be the personal right externalism presented by Ned-Kor mode.