The Belonging Of The Right In Rem Of Real Estate Bi-bargain When All Of The Vendees Haven't Gotten The Register Of Ownership Transference

The merchandise building business is the civil legal behavior that takes the real estate houses as the trade object, involving two difficult issues of real estate and contract of the real right law and the legal right law which most difficult to solve, this has also been an endless debatable focus problem of academic circles and the practice fields, the real estate bi-bargain is also the good case to study the property transference. The problem which is studied in this thesis is, in the real estate bi-bargain which all of the buyers haven't gotten the register of ownership transference, the ownership of the real estate should belong to whom.The case of this article is the special example of real estate bi-bargain, there are three contracts in the case and all of the vendees haven't gotten the register of ownership transference, among them still involves contract of future real estate, so it is necessary to analyze the effect of each contract. Firstly the article analyzes the nature of Article 37 of《The Law Of The People's Republic Of China On Urban Real Estate》and the effect of the contract of future real estate transference (The contract between the selling party and the first vendee.)according to the systematical method of explanation. Secondly, the article analyzes the contracts concluded between the seller and the other vendees, based on the nature of the relationship of obligation (which is the relative right, without the exclusive effect) concluded that these contracts are valid contracts.This article researches the problem-solving paths from different point of view: Firstly, from the legislative perspective analyze the world main modes of alternation of real right, basis on the systematical analysis of the two modes of alternation of real right of the formal doctrine and the meaning doctrine, apply the theories to the practice of solving the problem of this case (in the real estate bi-bargain which all of the vendees haven't gotten the register of ownership transference), then come to the different conclusions. Secondly,analyze the doctrine which the ownership transferred in different periods. The third, analyze the jurisprudence which adjudge the real estate to the first vendee, then refute the point of view. The fourth, analyze the conditions of the first vendee's right of rescission, then come to the conclusion that in this case the first vendee should not exert the right of rescission. The fifth, analyze how to apply the newly promulgated《Real Right Law of the People's Republic of China》to this case.The point of this article is that the real estate ownership should be adjudged to the vendee who got the possession of the real estate. Firstly, according to the choice of the seller of the bi-bargain, by deliver the possession of the real estate to the vendee, it can be concluded that the seller chose one of the vendee and fulfill his duty of the contract that transfer the possession of the real estate to this vendee. Secondly, discuss from the perspective of the function of possession, foremost, discuss from the perspective of the relationship of the possession and the real rights in civil law, on the grounds of the function of possession which possession can strengthen and protect the real rights in civil law, the vendee who got possession should sue the court to adjudge the ownership of real estate to him. Then discuss from the standpoint of the function of the possession and the protection of the vendee, suggest that the system of possession should have the function of safety protection in the real estate trade, should maintain the state of fact of the property domination, promote the utilizing of the property. In order to solve the problem that the active laws have the disadvantage in the protection of real estate vendee, put forward that protect the interests of real estate vendee through the system of possession. The third, discuss from the perspective of the economics of law. Foremost discuss from the standpoint of the efficiency of the utilizing of resources and properties with the aim of the maximum of the efficiency. Then draw lessons from R?H? Coase's idea of"correlation"in the case of torts, weigh the interests of equal rights. The fourth, carry on the argument from the distinction of the right in rem and the right in rem de facto, discuss the conditions that the right in rem de facto defends the right in rem, concluded that if the third party has the relationship of obligation with the seller but without the register of ownership of real estate, the third party can't defend the vendee who got the possession.