A Tentative Study On Personality Good Faith Acquisition System

Good faith acquisition system is an ancient yet charming legal system,and it is still playing an important role in modern society. As a result, it is quitenecessary to analyze and define this system and make a further discussion onits related questions. In this thesis, the author defines good faith acquisitionsystem, an institution named apparent agency and the unjust enrichmentrespectively, analyzes their relationship and makes an explorative discussionon the origin of good faith acquisition system: the time prescription rule of theunprivileged in Roman Law and hand muss hand wahran in Germanic Law.The author therefore argues that good faith acquisition system is formulatedwhen the good faith effective conditions in Roman Law are absorbed into themodern civil law which is based on the principle of Germanic Law. The authorlists five theories related to good faith acquisition system, i.e. Promptprescription, legal authority, possession protection, looking rights and thepublic trust respectively, making it clear that the basis of good faith acquisitionsystem is public trust. The effective conditions of good faith acquisitionsystem clarified are: the buyer should make a legal deal with the assignor, theproperty must be occupied by the assignor having no power to punish,thebargain should be personality, the buyer should be good will, the propertyshould be occupied actually by the goodwill buyer.The author believes that the good faith in the good faith acquisitionsystem is most important, and offers a detailed analysis on the following fourpoints: what is good faith, how to define good faith on the behalf of the buyer,the accurate evidence of good faith and the legal protection of this system.The author makes an explorative discussion about the problems of goodfaith acquisition system in relation to the legislative actuality in China, andexpresses his own point of view:Firstly, compensability and effectiveness of the essential items in goodfaith acquisition system. (1)Is the transaction compensable? The authorproposes that such improvements be included into future legislation: goodfaith acquisition is not put into use when the grantee owns the property for free,thus the original owner still enjoys the claim return right on the grantee, at thesame time the grantee has priorities right of pursuit defense over the originalover;the legal owner should refuse the return of the property when he cannotget compensation after compulsion on the unauthorized disposer's property,and the grantee acquires ownership over the property when unauthorizeddisposer is able to compensate the original owner. (2)Is the transactionbetween the grantee and the grantor valid? The author holds that thetransaction is not valid in that it is unauthorized. However, the nature of thetransaction is determined by law, and the unauthorized transaction becomesvalid as an exception since the good faith of the grantee compensates for theineffectiveness of the unauthorized transaction. Therefore, it is quite clear thatthe compensation of the grantee's good faith for the unauthorized transactionleads to the effectiveness of the transaction. Meanwhile, if some otherelements lead to the cancellation and ineffectiveness of transaction, such asfraud, menace, taking advantage of others' difficulties or the inability of thelegal representative, the grantee is not supposed to have the property right andthe good faith acquisition system does not operate. The authorized disposerenjoys priority over the grantor in case of property returning. Both the grantorand the grantee will be under the joint and several compensate liability, whenthe grantee deliberately returns the property, which is legally owned by theauthorized disposer, to the grantor, thus causing a loss to the authorizeddisposer, and the basis of rights of appraisal is the homologous duty. If there isstill unfulfilled contract between the authorized disposer and the grantor whenthe authorized disposer accept property returned from the grantee, the twoparties can deal with their interest distribution according to the rule ofcontributory negligence. In the good faith acquisition system, the invalid legalrelationship between the original owner and grantor does not affect thegrantee's good faith acquisition of the property.Secondly, the good faith acquisition of the separated occupied such as reifstolen and lost articles. The author holds that there should be certainexceptions to the formulated rule in China that the reif stolen should not bedealt with according to good faith acquisition system, and the exceptionsinclude: (1)Good faith acquisition system should be put into practice whenthe reif stolen is money or unauthorized securities so as to maintain theeconomic order, especially the financial order. (2)In reference to"compensable recovery " in foreign legislation, the original owner is allowedto ask for the return of his property from the grantee in the following two cases:(1)The property gained at auction, and the auction includes both the forcedand voluntary auction;(2)Property purchased at the public market or from thebusinessman who trades in the same goods. In addition, a limit should be seton the time within which the original owner is allowed to take the propertyback lest that the social relationship were instable, and this period of timeshould be regarded as the excluding time which lasts as long as two years inreference to the Civil Law of the People's Republic of China.(3)The itemseventy-nine in the Civil Law of the People's Republic of China regulates thatthe lost articles, drifted article and lost pets should be returned to the originalowner who pays the cost. The author argues that if the above-mentionedarticles are classified as free circulating objects, the applicability of the goodfaith acquisition system is determined in reference to the reif stolen.Thirdly, as for whether possession reformulation is applicable to the goodfaith acquisition system, the author lists four theories: affirmative theory,theory of mutual-loss-sharing, medium theory and negation theory, amongwhich the author thinks the negation theory is the most appropriate.