| Transaction of real property is important link in market of real property. Present, our market of real property transaction is developing stage, but it is necessary to model. We must form Chinese special feature norm according to either absorb experience of other country or our present situation.A main ideal of this article is to discuss system of real right change in real property change. Result of real property change lead to change of real right certainly. State of real right is different depend on commerce or mortgage condition in transaction. It is paid attention to especially that real right change always do not occur as result of advance booking and mortgage. there are three point of view about legislation of real right change in the law world at present: real right formalism in represent of the law of Germany or right of debt meaning ism in represent of the law of France,Japan and right of debt formalism in represent of the law of Switzerland and Austria. The three point of view of legislation ism reflect value determine──transaction safe and freedom. At same time, The three points of view of legislation ism reflect that it has to have mean's express and public announcement method. On the basis of efficacy which it is created by real property combined with public announcement, there are composed factor ism (or name as formalism) legislation and resister factor ism legislation (or call as meaning ism) in legislation. According to our present state in real property transaction, the point of legislation's view of formalist is adopted in our country. Real right change can be given expression to in definite form in the light of principle of public announcement and trust. That is, Register of real property and anther beside register is regarded as symbol which real right is established and modified and wipe out. In legislation, we admit that register of real property is symbol of real right change. There are two legislation systems in the world about efficacy of register of real property: essence ism register and formalism register. There is not more country holding a point of view of formalism register (that is a point of view of register factor ism) in they. France and Japan are representative. General say think, because of register which it is public form of real right change has acted as to guarantee business safe, there are some useable places in point of view of register effective ism, it should adopt. On the other hand, it is displayed either transaction safe or freedom, transaction freedom is reflected means of ownership, moreover, register is not thorough secure measure also. Depend on principle of public announcement and public trust, to absorb point of view of real right formalism, on exist legislation and theory, author bring out that litigant can agree on what possessed transfer regard as public announcement method of real right beside register. The method reflect that law adjust transaction from private law meaning, so as to avoid public legal right to more meddle to transaction, it embody more adequately litigant's free idea. Another, transaction efficacy get raised, commerce is completed quickly. To guarantee security of transaction, there are three conditions to fit the method: first, it has to embody real meaning of litigant; second, it must has definite outward form, that is transfer of right evidence of possess ownership. If two public express methods conflict each other, under general condition, efficacy of register are stronger than anther beside register, register is primary, another beside register is auxiliary. Efficacy of public announcement of another beside register are less than register from degree of public trust force, it can not resistant to third. It can create negative appearance in practical real right change of another beside register. It can be solve by definite way Such as double buying-selling and repeating mortgage etc. The use of the two public announcement methods is embodied price directional of real property transaction practically, that is tra... |
