On The Bona Fide Acquisition Of Real Estate In China

As to the bona fide acquisition of real estate, there are similarities or characteristics among every country's legislation, and the jurisprudential circle in China also has had disputes over it. Real right law of the People's Republic of China, promulgated after seven times of deliberation, has provided the bona fide acquisition of real estate explicitly, which are agreed upon by author, but as to the material provision author holds the view that it shall be perfected so as to benefit from the material operation and execution thereof.The theoretical source of the bona fide acquisition shall be analyzed in the first chapter. Firstly, I shall define the real estate and the bona fide acquisition; secondly, penman shall point out that the bona fide acquisition of real estate dated from the principle of guarding hand to hand in the Germanic law, and sucked in the qualifications of the bona fide in the Roman law. The bona fide acquisition of real estate, as a civil law system that is efficient in the practices, emerged with the speedy development of the commodity economy and the growing demand for protecting the transactional safety. The bona fide acquisition builds on the foundation of the principle of public confidence efficiency as its logical point, and retain the society as its standard that is determined as the theoretical foundation thereof. The theoretical foundation of the bona fide acquisition of the real estate shall make the right appearance theory as its theoretical foundation, and the public confidence efficiency resulted from the registration of the real estate confers the right appearance upon the registry thereof , from which the of the real estate shall derive.The necessities that China shall admit the validity of the bona fide acquisition of the real estate shall be analyzed in the second chapter. Based on the analysis of the bona fide acquisition of the real estate in the world and the evaluation about the positive and negative views of the bona fide acquisition of the real estate, penman shall propose the theoretical and the practical foundation of the bona fide acquisition of the real estate. Through the comparative analysis of the bona fide acquisition of the real estate in every State, penman shall in the registry of the real estate pick up some defects of registry and the variance between the contents of right thereof and the actual extent of right thereof, which shall be the practical basis on which in the registry of the real estate shall be confirmed. Moreover, penman, through the analysis of the relevant judicial explanation and the single-line laws along with the Real Right of the People's Republic of China, point out that the confirmation of the innocent purchase system of the real estate in Chinese law shall be the heading trend in the future.Author shall propose some advices about how to construct the bona fide acquisition of the real estate in theory. The article 106 of the Real Right of the People's Republic of China only provide three qualifications about the bona fide acquisition of the real estate, namely, (i) to accept the real estate in good faith;(ii) to purchase the real estate at a reasonable price;(iii) in case registration is required by law, the alienated real estate shall have been registered. The provision above is not flawless. Through the full analysis of the qualifications and the lawful efficiencies of the bona fide acquisition of the real estate, penman shall take out the view that after confirming the bona fide acquisition of the real estate we shall change the extent that the registry of estate has gone back of the current circumstances, and construct the perfect registry system of the bona fide acquisition of the real estate and unify the organs in the charge thereof.The following views shall be illustrated in the fourth chapter:(i)so as to construe and apply the bona fide acquisition of the real estate correctly and balance the benefits between the owner of the estate and the bona fide assignee, it shall make clear of the distinction between the estate and the chattel, define the meaning of bona fide, for example, whether use the positive view or the negative view, or whether use the objective standard or the subjective standard etc. (ii) it shall make clear of the bona fide acquisition of the real estate. (iii)as to such the special chattels called as the quasi-realty in theory as the vehicles, the vessels and aircraft etc, the bona fide acquisition of the real estate shall apply to them on the reasons that they shall be registered with when transferred or the mortgage are projected on them.