Brief Discussion On Bona Fide Acquisition Of Personal Property And Related Problems

This dissertation gives a relatively complete exposition on the system of bona fide acquisition of personal property. It mainly introduces the effect of transaction mode in possession modification under the system of bona fide acquisition of personal property and the effect of contract of purchase when the system of bona fide acquisition of personal property is applied.Chapter One tells the historical resource of the system of bona fide acquisition of personal property. This chapter reviews the similarities and differences to the system of bona fide acquisition of personal property among France, Germany and some other countries from the view of comparative law. The system of bona fide acquisition in neoteric civil law derived from Germanic law's "Hand muss Hand wahren". Along with the economic development and the increase in current, the needs for safety and convenience in transaction have been arisen. Under the "Hand muss Hand wahren", some countries admitted the bona fide element in acquisition prescription in Roman law and developed the system of bona fide acquisition of personal property in modern civil law. Generally, only personal property transaction could be protected under the system of bona fide acquisition in civil legislation of the countries.The system of bona fide acquisition has not been confirmed in General Principles of Civil Law, which is the currently effective law in our country. Though some laws, regulations and judicial interpretations has given the provisions of the system of bona fide acquisition, the concept, elements and effect of the system are deficiency. The system of bona fide acquisition is still faultiness in current legislation in our country.Chapter Two introduces the theoretic foundation of the system of bona fide acquisition of personal property. There are different doctrines on the theoretic foundation of the system of bona fide acquisition. The basic logical foundation that the bona fide transferee owns the right of the property is due to the power of public trust for the possession. Under the conditions of market economy, transactions become frequent increasingly. Upon the necessary of maintaining effective and safe in business, we shoutd admit the system of bona fide acquisition. This is also the value basis and the reality demand basis. So Essentially, the system of bona fide acquisition is a system to protect the movable safety (the safety of transaction) at the cost of sacrificing the quiet safety(the ownership).Chapter Three introduces the resources of possession modification and its application effectiveness in the system of bona fide acquisition. There are different doctrines on such circumstances in Academic circles about whether the system should be admitted as positive doctrine, negative doctrine, eclecticism doctrine and commonly share doctrine. This dissertation agrees with the negative doctrine. Though the system of bona fide acquisition aims to protect the bona fide third party and the safety of transaction, also, laws should make rules for giving attention to the quiet safety to protect the original owner and to balance the protection degree between the safety of transaction and the original owner. Possession modification is the most ambiguous one among the modes of transferring possession. Laws should not give favor to transferee but neglect the original owner.Chapter Four analyses emphatically the effect of purchase contract when the system of bona fide acquisition of personal property is applicable under different modes of property right transference in accordance with the relevant provisions in Article 51 of Contract Law. The dominant ideology in both academic and practical circles tends to that this provision should be a general rule setting for the untitled disposition act in our civil legislation and the untitled disposition act should be invalid. The untitled disposition act with a pending effect means the effect of creditor contract between the parties is pending.Chapter Five discusses the constitutive requirements and the legal effect of the system of bona fide acquisition of personal property. The constitutive requirements divides into five parts:â…°) the transferee acquires the property with bona fide, which means the transferee don't know or should not know that the transferor is untitled when the property is transferred. This dissertation stand by the negative doctrine;â…±) The transferor should be the one who has not the right to dispose of the property;â…²) transferee should acquire the property by a effective legal act. This effective legal act doesn't means the effect requirement of the complete and sufficient civil legal act. Such incomplete is only limited to the untitled disposition and premise to the acquisition with a consideration;â…³) the property should be legally transferable;â…´) the property has been transferred to the transferee.