Study On The Expression Of Intention In The Real Right Alternation

As an important theory in property law, the real right alternation take critical roles in legislation and the judicial practice of the real right. It is the most common type in the real right alternation that is caused by the juristic act. The real right alternation what is induced by the juristic is not only the most complex but also controversial. This paper wanted to explain what is the expression of intention of real right through analyzing model of real right alternation. Then we will discuss the legal nature and construction of expression of intention of real right. The purpose is telling that the expression of intention of real right is objective existence. There is different between the expression of intention of real right and the expression of intention of obligatory right. And the expression of intention of real right decided directly the juristic act of real right's legal effect, which is value of the judicial practice. The article is made up five parts.The first chapter introduced the model of real right alternation. In this chapter, the writer gave a simple introduction of three different legislative models, there are formalism of real right, principle of will and formalism of creditors'right. Then the writer specific analysed the formalism of real right, the reason was wanted to show the character of this model of legislation. In this process, we presented some conceptions, the consensus of real right, the expression of intention of real right, the juristic of real right and the contract of real right. Understanding those conceptions is foundation to comprehend the expression of intention of real right.The second chapter is the legal nature of expression of intention of real right. In order to analyse this, the article discussed the relationship between expression of intention and the legal act. We knew that expression of intention is very important to the juristic act, therefor as one type of the legal act, the expression of intention in juristic act of real right played important roles. In order to prove that the juristic of real right is independent, the first thing was proving the object existence of expression of intentionof real right. So in this chapter the writer firstly investigated the independency of expression of intention of real right, and then discussed its legal character, finally found distinguishs between obligatory act. Frankly, legitimacy was one of elements to make the expression of intention of real right effect in law. The third chapter is the elements of expression of intention of real right. In this part, we made a correction to the elements of expression of intention. The writer thought there were three factors:effective intention, express meaning and expression behaviour. So was the juristic of real act. Because there were two kind of legal act of real right, unilateral and bilateral legal act of real right. We investigated one by one.The fourth chapter of this paper is legal effect of expression of intention of real right. Because of the uniqueness of the real right, the expression of intention of real right decided the legal effect of juristic act in the course of the real right alternation. But, the whole act's legal effect didn't change. Comparing with other juristic act's legal effect, the expression of intention of real right's legal effect had some conditions:invalid, revocable and undetermined effect. The expression of intention of real right had some flaws which caused the different conditions.The fifth chapter is telling that the values of expression of intention of real right in practice. In the last part, this paper looked back the history of the juristic act of real right in China. In the past, misunderstanding of the juristic act of real right caused the confusion of the legislation and the judicial practice. As long as The Proper Law had been enacted. Though The Proper Law admitted the distingushing principle and the real right, the confessions were still exist. For this reason, the writer proved the exist of the distingushing principle in The Proper Law, and then, analysed the practice values of the expression of intention of real right, which was very important to protect the third man's interests and maintain the transaction order.