On Equitable Ownership

Different from the concept of absolute ownership which is taken as the cornerstone of the property law under the Continental Legal System, the property law in Anglo-American Legal System is based on the concept of fragmentation of ownership. Under the dual judicial system, the fragmentation of ownership is mainly expressed by legal ownership and equitable ownership. This paper focuses on the equitable ownership, and tries to grasp the nature of the dual ownership.To show the true face of the dual ownership, this paper attempts to research the equitable ownership with multi-angle perspectives, such as historical analysis, comparative analysis and positive analysis. In this paper, the author tries to interpret the formation of the concept of equitable ownership under the history of the Equity. Through the comparison of two legal systems, the author tries to interpret the nature of equitable ownership. To display the application of the concept of equitable ownership in the judicial practice, the paper uses the methods of positive analysis.This paper is divided into five parts, about 33,000 words.The preface introduces is the reason why the author chooses the real property Transactions as a micro-perspective. This paper holds that, the previous studies on the dual ownership of the property law in Anglo-American Legal System, which started from a macro point of view, are often biased, and the more efficient approach that is the micro-positive analysis has been ignored. So this article will try to start from the positive level, to research the equitable ownership.The first part is an overview of equitable ownership. This paper holds that the concept of fragmentation of ownership was applied in the parallel judicial system, as a result, the equitable ownership was born. Through the Use, the concept of fragmentation of ownership under the feudal tenure was renewed as the Trust. In Trust, the concept of fragmentation of ownership is expressed by the trustee's law ownership and the beneficiary's beneficial ownership. Then, the concept of fragmentation of ownership was introduced into the real estate transactions. As a result, the purchaser was entitled to the equitable ownership, which could defend from the vendor's law ownership.The second part will study equitable ownership in real estate transactions. In judicial practice, the specificity of real estate transactions, created the principle of "equitable conversion", which is that the concept of the fragmentation of ownership was applied in real estate transactions. The theoretical basis of the principle is the maxim of equity that" Equity looks on that as done which ought to be done ", as well as the specific performance of the equitable relief. The application of the principle to the real estate transactions, changes the legal rules in succession, tort, the risk of the loss, and the mode of the ownership's transfer in the real estate transactions.The third part studies on the judicial application of the concept of equitable ownership through the installment land contract. Using the case, the paper will explore how the concept of equitable ownership influences the judicial practices, as well as how balance the interests of both parties. To reveal the different logic of two main legal systems, the paper will compare the purchaser's equitable ownership in the installment land contract on the Anglo-American law with the buyer's expectation right in title retention on the German system.The conclusion is how to adopt the Anglo-American legal theory. This paper holds that China's legislation should be based on the main framework of the theoretical system of the Continental Legal Systems, and also should absorb some institutions in Anglo-American Legal System.