Research On The Acquisition In Good Faith Of Thievery

It is well known to all that acquisition in good faith is a important system in neoteric civil law, which relate to the problem of how to weigh the ownership and security of dealings. On the point of protecting owners, ownership shouldn't vanish just because some powerless person dispose it, so the owner have right to ask the transferee return protoplast, the latter should seek remedy from the powerless transferor. But if we seeing out protect ownership absolutely, we should influence bargaining. So we need acquisition in good faith to give attention to two sides, by such measures to stabilize economic system, maintain natural merchandise exchange. From observe the legislations of other countries, especially civil law country, we should find out that although the idiographic article is different, the acquisition in good faith have become a basic legal system. Presently there aren't perfect establishing acquisition in good faith in our country, so we must regard it as an important system and ordain it systematically in our forthcoming Civil Law Code. Although the most scholars in our country think this system is necessary, there still are some disputes on concrete content, such as whether or not we should admit thievery should be acquisition in good faith. There still is controversy in theory. Chapter one, I discuss the history of Acquisition in good faith. It didn't derive from Roman law, but orient from Nordic law, which is different from other civil systems. But even the Nordic law still ignore thievery problem. In 1766, Codex Theresianus juris civilis differentiate consign and disengage object in legislation history for the first time, and they believe the former should be object of acquisition in good faith, but the latter not. Today, acquisition in good faith has established in civil law countries, however, there are different example on whether or not and to what extent the disengage objects such as thievery should be bona fide gain in different countries. Germany civil law didn't admit that transferee could gain the ownership of thievery and lost object, while Japan Switzerland and Taiwan believe that the owner should take back it in a period, if the owner didn't do such thing, the transferee should gain the ownership of this personal property doubtless. Chapter two, after analysis the different attitude among many countries, I think eclecticism is advisable, which is now adopted by many countries especially civil law countries. That is to say, limit the taking back of thievery by time. To occasion that base on the fundamental of open market, the taking back should be paid off; but special object couldn't be taken back. By such measure we could harmonize better both the static state and dynamic securities Chapter three, I think acquisition in good faith of thievery is a system to balance the benefit of owner and transferee with goodwill in nature. On the one hand, it can protect the owner, so to ensure the security of ownership, and maintain system; on the other hand, it can protect the benefit of transferee with goodwill, so that to promote the convenience and ensure the security of exchange. When there is conflict, this system emphasize particularly on the protection of transferee with goodwill. By doing so, it not only ensure the security of exchange, but also encourage exchange. By protection, the transferees habitually believe in the legality of exchange and are sure that the object get from exchange shouldn't be replevy. This will inspirit parties to be engaged in exchange boldly. So to establish a credit economy, smooth the transfer of title. The transferees of thievery without any fault, that is, he didn't and needn't know whether thetransferor have no right and the object is thievery. So when he engaged in exchange, his trust is subjectively "goodwill"and no fault; the external stably possesses the property. This entire are the law must to protect, and they need to be involved in the fundamental of civil law such as "good faith", "equity". So protecting the third party and restricting the right of former owner is a just way to solve this dissension. So, bona fide gain of thievery is accord with equity principle of civil law. Another modern academic base of acquisition in good faith of thievery is the exoteric effectiveness of possession. The transferee could believe that the transferor have proper right just because the effective possession and needn't careful checking. If his belief is based on goodwill, on exoteric effectiveness of possession, he should be protected. But the law didn't painstakingly protect one part; it is want to reach an optimal balance point. So we couldn't unconditionally admit any change of object, after all, law is not a tool to protect evil. This putative should exclude malice people; this is the relativity of this theory. From what we had discussed we can reach such a conclusion that exoteric effectiveness of possession and the putative is the logical jumping-off point. And the effectiveness is only useful to the goodwill party, although there are defects, he still be protected for trust. From that derive the system of acquisition in good faith of thievery, which is the embodiment of exoteric effectiveness of possession. Chapter four, The Acquisition in good faith of thievery includes the gain of ownership and security interest. Since security interest is the most important right type, I think, we should involve the acquisition in good faith of thievery in our study, and by differentiating different type of interest, and then regulate them respectively. Chapter five, without question, acknowledges acquisition in good...