Re-analyzing The Mode Of The Property Changes From The Value Consideration

As one of the most disputable and challenging issues in civil law, the disputes on the changing mode of the real right almost accompany the growth of civil law of China since our reform and opening. In fact, the changing mode of the real right constitutes the basis and frame of the whole real right law. A substantial and perfect system of the real right law is just developed and established through the venation of the changing mode of the real right. With the development of research on the real right, books edited by Doctor Wang Yi, Xiao Houguo, Sun Peng, Wang Ying and Zhao Jitao were published one after another. However, being affected by macro-environment of German law, the formalism mode is still the mainstream supported by the academe. In theory, the investigation of France law and Common law and antagonism mode are universally ignored. This can be easily seen from the legislative choice of the real right law of China. Regarding the change of the real right, we adopt the principle of effecting upon registration for a realty and the principle of effectiveness firstly upon delivery and secondly upon registration for a chattel. Article 9 of the real right law provides:"The creation, change, transfer or elimination of the real right of a realty shall become effective after it is registered according to law; it shall have no effect if it is not registered according to law, except it is otherwise prescribed by any law". Article 14 provides:"The creation, change, transfer or elimination of the real right of a realty shall, in case it shall be registered as required by law, become effective since the date when it is recorded in the realty register". Article 23 provides:"The creation or transfer of the real right of a chattel shall become effective upon delivery, except it is otherwise prescribed by any law". Article 24 provides:"The creation, change, transfer or elimination of the real right of any vessel, aircraft or motor vehicle, etc, if it is not registered, may not challenge any bona fide third party". Obviously, the principle of effecting firstly upon delivery and secondly upon registration has been adopted for the change of the chattel right.It seemed that the hot discussions on legislative choice of the changing mode of the real right had faded since the release of the real right law, but it was not absolutely the last verdict. It is still necessary for us to discuss and dispute on the choice of the changing mode of the real right in our future the real right law. This paper, comparing and analyzing the changing mode of the real right from a new visual angle of the value pursuit of nomology, analyzing the value consideration of the theory of the real right change which puzzled the academe for years, advancing and deepening the research of the changing mode of the real right, aims to give legislative suggestions for the changing mode of the real right in our future civil code. The basic content of the paper is as follows:Chapter 1:By contrasting the value claim of the public and private law, this paper analyzes the basic value which should be covered by the real right law. The value pursued by the public law is to maintain the order for our society to operate properly, which is in some extent superior to freedom. However, in order to prevent the country from exuviating to tyranny, a necessary order is needed as a limit to constrain and control freedom. The value pursued by the private law is to respect and protect the freedom of citizens to the fullest extent. The compellent limitation in the name of order shall be confirmation, assignment and protection of freedom other than negation and hindrance of freedom. As a result, the conception and practice of public and private law prove the basic value covered by the real right law as a private law, namely freedom, order and justness, among which the value of freedom is the soul of the real right law.Chapter 2:This paper firstly expatiates the basic conception of the real right change and the principle of public announcement, then continue to expatiate the two basic changing modes of the real right, focusing on analyzing the distinction of the two modes and the mode implied in the real right law of China. Lastly, this paper expatiates the bona fide acquisition system, which has affinitive relationship with the change of the real right.Chapter 3:In terms of value consideration, this paper, for the purpose of choosing which kind of changing mode to more properly protect the freedom, order and justness, reconsider and discuss the choice of the changing mode of the real right. This paper believes that:(a) The legislative mode of autonomy of will shall be more beneficial to protect the freedom of party autonomy.(b) The legislative mode of autonomy of will can also maintain the social order.(c) Compared with formalism, the legislative mode of party autonomy embodies more justness in the protection of assignee, assigner and the third party.Conclusion of this paper:In terms of value consideration, the legislative mode of party autonomy is beneficial to the protection of the freedom of party autonomy while maintaining the order. At the same time, comparing with formalism, the legislative mode of party autonomy embodies more justness in the protection of assignee, assigner and the third party. Although it can not be denied that the legislative mode of party autonomy has its own unredeemable flaws, but it has irreplaceable merits in contrast with the legislative mode of formalism. Therefore, the future real right law shall change the present changing mode of the real right and adopt the legislative mode of party autonomy.