On Elements Of Bona Fide Acquisition System

As an important system of civil law, the bona fide acquisition system (the"System") has played a key role maintaining the society and the economy in good order, ensuring transaction security, protecting third party's interests and the public interests. The System has been established in the civil code of most countries in the world. However, no sound and systematic mechanism of the System has not been established in China, notwithstanding existence of a certain judicial interpretations issued by the Supreme Court of China addressing the System and the acceptance of the System to a limited extent in judicial practice. There are many controversies on some issues in connection with the System in the area of both theory and practice, and such issues include the nature, elements, scope of application and etc. As the elements of the System are the key issue of the system, which directly influences the change and balance of the interests among the actual owner, the party who disposes the property without the entitlement and the bona fide third party, it is of great significance to conduct a comprehensive study and analyze on the elements of the System from different angles and at different levels. For the above-said purpose, the author has chosen the elements of the b System as the study direction. In stead of repeating the viewpoints and/or theories of the System that are commonly recognized in the same area, this article focuses on a certain difficult or greatly disputed issues in connection with the elements of the System, which mainly include interpretation and application of unauthorized disposition, standards for identifying"bona fide", limitation on application of the System to the movables, possibility of applying the System to real property, jus in re aliena or debts and etc. The article is structured as follows:The first part addresses unauthorized disposition. With comparison of the patterns of juristic acts of various countries, this part demonstrates that unauthorized disposition shall refer to juristic acts of real right. In the process of change of real right, act of indebtedness is an act that creates obligations and neither the identification of the subject matter nor the party's right of disposition is necessary. While the act of real right is an act of disposition of legal rights, and it requires the identification of the subject matter and the entitlement of disposition of the party is a essential pre-condition. To distinguish the two kinds of act is for the purpose that, in the event the effectiveness of any act of real right is undetermined due to the lack of entitlement of disposition of the seller and the buyer cannot pursue remedy under the System, then the buyer can be protected under the valid and effective contract of purchase and sale. The two mechanisms serve to ensure the security of the buyers in such deals. Further, through tracing the source of the System, this article analyses the intention and extent definition of the party of unauthorized disposition, which is that the same party is limited to those who is not the owner of the property, excluding the owner who has limited right of disposition. This part also discusses the manner of transaction and delivery, and the act of bona fide acquisition in consideration that they are relative to the constitution of unauthorized disposition acts.The second part mainly sets forth the standards of verifying bona fide. This part sets forth demonstrations on the concept, principal part, period, theoretical standard, practical standard and allocation of burden of proof. For example, for the principal part, this part analyses the different standards in telling the principal and agent; for theoretical standard, this part analyses the difference and relation between the"negative theory"and the"positive theory"and brings forward the standard on the basis of the"negative theory"and supplemented by the"positive theory"which requires that the actual owner shall bear the burden of proving that the third party is not bona fide.The third part discusses the scope of application of the System. This part discusses the general conditions and exceptions of the bona fide acquisition of moveable. Though the subject matter of bona fide acquisition is limited to moveable, it is not applicable to all kinds of moveable. Further, it discusses the bona fide acquisition of real property. From the view of traditional theory, the System is generally limited to moveable and will seriously damage the right of the actual owner if it is applied to real property. However, the jurisprudential basis of such application is sufficient. Because the transaction of real property may have significant impacts in various aspects, in order to avoid damage to the actual owner, the conditions of such application shall be strict. In addition, the author also analyses the possibility of applying the bona fide acquisition to jus in re aliena and debts, which are the extended application of the bona fide acquisition.This article analyses the elements of the System from various aspects aiming at seeking the way to establish the bona fide acquisition system in China Property Law. It is certain that there are many problems I practice regarding the elements of bona fide acquisition system which need further study and discuss.