The Jurisprudential Analysis Of The Rules Of Protecting Third Party's Interests In Real Right Alternation

Based on the rational cognition of protecting the third party's interests in real right alternation, this paper examines such theories as the bona fide acquisition, demonstrative principle of real right and abstractness of real right act in terms of the protection of the third party's interests in the alternation process. Based on this examination, this paper advances a fundamental pattern and specific rules on the protection of the third party in China's civil legislation.The protection of the third party's interests in real right alternation is a very important issue in market economy as well as one of the basic categories in the field of jus rerem. China's traditional practice to protect the third party's interests is bona fide acquisition, but this method cannot fulfill its responsibility in practice because it uses a subjective standard to measure the third party's bona fide.The establishment of the demonstrative principle of real right can fill this hole left by bona fide acquisition by providing an objective standard, which is fairly comprehensible. The theory of juristic act of real right provides theoretical foundation for the demonstrative principle of real right, and has apparent advantages over bona fide acquisition in the protection of third party's interests.After analyzing these three theories, the author points out that each theory has its advantages and disadvantages and can be most effective in certain occasions. One method, by itself, is not enough to protect the third party's interests. Therefore, in China's civil legislation, the system to protect the third party's interests should be based on the theory of juristic act of real right and bona fide acquisition. As to the definition of the alternation of real right, the standard should be the conclusion of the contract of real right and accomplishment of public summons and this standard can supply the gap left by the principle of public summons. As to the definition of the third party's subjective bona fide, the advantage of the bona fide acquisition should be absorbed and the approach of objective construction should be adopted. Thus, the principle is that the third party is assumed to have bona fide unless the original owner of real right proves malice on the third party's side. All these measures can help to establish, in the alternation of real right, a third-party-protecting system where the three methods complement each other.The main body of this paper includes four chapters. Chapter 1 explains the significance of the research subject. Based on a typology analysis of the real right alternation and the third party to define the scope of the discussion, Chapter 2 approaches the rational cognition of protecting the third party's interests. Thereby it provides the starting point and thread for the following discussion. Chapter 3 analyses the mechanism, advantages and disadvantages thoroughly of the three methods in terms of protecting the third party's interests. Based on the analysis of the former chapters, Chapter 4 advances a fundamental pattern and specific rules on the protection of the third party in China's civil legislation.