The Research On Rule Of Protection Of The Third Party In Real Right Alteration

The protection of the third party in real right alteration is one of the important contents in real right law. We have some regulations on the real right in the judicial interpretations and some special statutes, bona fide acquisition for instance, but we do not have real right code. Obviously, it could not meet the demands of the real life and the construction of the legal systems. In the theoretical field, there are many discussions on this issue. The scholars put forward their own ideas by the analysis and the comparison of legislations of different countries. Nevertheless, the author could not get the deep statements from them. It may be the reason that we have not done the deep research on the protection of the third party. This paper aims to analyze and discuss the issue by the premise of the description of the different legislations, and gives my own opinions due to the analysis and the discussion above-mentioned. Therefore, the scheme of this paper is as follows:The first chapter is the definition of the issue. It concerns of the reason of the issue and the scope of the discussion. The author believes that the independence and the interest are the characteristics of the third party; the premise of the issue is the inconsistent of the owner of the real right and the depositor of the real right, which limits the scope of the third party. In practice, the issue lies in three situations: double sales, dispositions without rights and the restitution of the alteration of real right.The second chapter describes the different legislations on the issue. There are three patterns of the alteration of real right: the principle of consent, the principle of contractual agreement and the principle of real agreement. There are no real right act and the principle of demonstration of real right under the principle of consent. Meanwhile, there is a special solution of the restitution of the alteration of real right under the principle of abstraction. We may use it for reference for the real right legislation in the future. The effects of the patterns of the alteration of real right on the protection of the third party express not only in the legislation, but also in the systems of the protection of the third party. The scholars always take the designation of the legislation into consideration due to the characteristics of the systems themselves. While the author thinks two thoughts are behind all kinds of the systems, which are the principle of the demonstration and the rationality of the acquisition of the real right of the depositor (including the legislations concerned the principle of abstraction and the principle of the consent). The third chapter analyzes these thoughts and discusses the effects of it.The last part describes the current legislations and discussions of the issue in China. The author believes the key discussions are concerned the principle of the demonstration and the principle of the abstraction. From the analysis of the paper, we may believe that the principle of demonstration is superior. In addition, the author analyzes the fault conclusion the relationship of between the principle of demonstration and the principle of abstraction. Finally, the author draws the conclusion that we'd better adopt the principle of demonstration in the legislation of the real right in the future.