On Establishing Good Faith Acquisition Of Our Immovables

As one of the most important principle of property right in Property Right Law, the object of establishing good faith acquisition is to maintain dynamic security of property right transaction and adjust benefit relation between property righter and 3rd person. Good faith acquisition is fixed in most countries'civil law, but just limit in movables not suitable for immovables. Our new Property Right Law regulates good faith acquisition clearly and fixes it formally. It both determines good faith acquisition of movables and immovables, which is according to our national conditions and plays an important role to maintain transaction order, protect the 3rd person's legitimate rights and interests, and adjust relations of our property right. For the specific regulation of this principle, the author holds that is should better improve for practical operation and exertion. The paper aims to analyze the history of good faith acquisition of our immovables in and abroad and scholars'dispute. Based on the comparative study and complying with related regulation on Property Right Law, this paper elaborates the establishment of good faith acquisition of our immovables including essentials, legal effect, legal remedies and flaws and perfection of good faith acquisition of our immovables. This thesis is divided into four parts:In the first part, it compares the Chinese and foreign legislation by observing good faith acquisition of our immovables and analyzes the theoretic dispute. It shows that different countries have its own way to regulate whether immovabes is suitable for good faith acquisition. Investigate its reason, because each country has different registered principle for immovables. If the registered principle carries out formal examination, register without public trust, register administration without check registered matter's defects, the matter of registered outer state and real situation often occurs. The right matter registered by public entrusts is the real state of right. Good faith acquisition of our immovables doesn't fit for base certainly. While for countries bringing substantive examination in force, as a result of the public trust of immovables'register, the right matter registered by public untrusts is the real state of right, so it has the base of good faith acquisition of immovables. In our country, immovable register carries out substantive examination and has the basis of good faith acquisition of immovables. For whether good faith acquisition is suitable for immovables, there are two points of view in our theory circle. They are positive saying and negative saying. The writer analyzed the opinions and puts forward own mind. In the second part, it further analyzes the basis of establishing good faith acquisition of immovables. It analyzes in three aspects: firstly, the theoretic basis of good faith acquisition of immovable is the ability of registered understanding and public trust. When immovable register trusted by good faith 3rd person and immovable register nominee transact, although its characteristic right and real right are different, good faith 3rd person of trusting this register should enjoy legal protect. Secondly, the value basis of good faith acquisition of immovables is balance efficiency and safety and supporting legal transaction activities. Furthermore, realistic basis of good faith acquisition of immovables is frequent occurrence of defect immovable register.In the third part, it illustrates theory building of good faith acquisition of immovables. Based on the 106th regulation of Property Right Law, it analyzed the essentials of building good faith acquisition of immovables, which mainly compose five ones: assignor is the righter of immovable register recorded but has no right to handle immovable. When assignee transacts immovable requires good faith, existing flaws of immovable register. Assignee gains with reasonable price. Immovable transacted has be registered and recorded under the name of assignee. Secondly it indicates the legal effect and legal remedy of good faith acquisition of immovables. Good faith assignee can acquire the ownership of immovables; original property righter neither loses the right and must nor require good faith 3rd person return original matter and shoulder some responsibility. It can compensate by national compensation and relief, breach responsibility and relief, default responsibility and relief and unjust enrichment relief. Assignor's action is no right to punish. Assignor should undertake responsibility for paying for copyright infringing or return undeserved benefit for real owner. For national registered administration, if there is a defect causing client's loss, it should pay for victim by national compensation and relief.In the fourth part, it discusses flaws and perfection of good faith acquisition of immovables regarding to Property Right Law. The author holds that Property Right Law expands its range to immovable and establishes good faith acquisition of immovables property right, which is good to maintain the transaction security of immovables and judicial practice. From then on, immovables suits good faith acquisition has laws to observe. As law, good faith acquisition of immovables still has several flaws and defects. One, it is lack of perfect register principle and should abide by ordinary law theory and international conventions immovable registered. Build uniform registering principle for really serve transaction security and client. Two, it is worthy to pay attention on relief methods for original owner. Registering administration should be in charge of registering mistakes. The compensation can reference from German and Tanwai's regulation regarding to compensation fund of mistakes. Three, good faith acquisition of immovables and movables shouldn't be regulated together. The author put forward that it didn't clear immovable as right characteristic by register and no right to disposal person is registered nominee. Four, unregistered immovables don't apply for good faith acquisition of immovables, which should have defined regulations. As a result of numerous unregistered immovables in our countryside, immovables unsuitable for good faith acquisition should be defined in the view of law. Judicial practice has laws to observe which is good for handle dispute and stop collision. Property Right Law in China is still in the early stages of development. All aspects are very immature waiting for constant repletion and improvement in order to satisfy demand of market economy's growth.