On The System Of Bona Fide Acquisition Of Real Estate In China

The bona fide acquisition is a familiar concept and system in law field of China. There are always two popular opinions on the bona fide acquisition of real estate in the academic circle of China, i.e., the positive theory and the negative theory. The dispute between them focuses on whether the change of real estate right in rem should apply the system of public summons and public trust or the system of bona fide acquisition. The scholars supporting the positive theory believe that the essence of registering public trust is the application of the system of bona fide acquisition, because the principle of registering public trust in itself includes the pursuit of bona fides and at last the bona fide third party should be protected through the bona fide acquisition. However, the scholars supporting the negative theory believe that the change of real estate right in rem should not apply the system of bona fide acquisition, but the system of public summons, i.e., legal effect should be endowed by law according to reliance contents.It is believed by the author that the principle of public summons and public trust is the theoretical basis of the system of bona fide acquisition and should have been expressly stipulated in law, but only the thinking on the bona fide acquisition of real estate is adopted and the principle of public summons and public trust is get rid of in The Property Law. But based on the national conditions, it seemingly has certain rationality. The system of bona fide acquisition of real estate is in conformity with the property principle of public summons and public trust in itself, which has its specific legal basis; meanwhile, the public trust of the real estate registration also needs to be maintained by the system of bona fide acquisition of real estate which has its specific value basis.The bona fide acquisition of real estate is mainly composed of four requirements. Firstly, the transferor mustn't have the right of disposition. Secondly, the transferee must accept the real estate in good faith. Thirdly, the real estate should be paid to acquire at a reasonable price by the transferee. Fourthly, the transferential real estate should have been registered.The right type of the system of bona fide acquisition of real estate is applicable in the rights including ownership rights, usufructuary rights and security interests, etc. The specific applicable right should be determined by the specific trade purpose, that is to say, the bona fide acquisition is also applicable to unfructuary rights or security interests. The regulations of usufructuary rights are based on use value, while the regulations of security interests are based on exchange value. The discrepancy is caused by the nature of real estate in itself, i.e., inability to move in space.In the practice of China, the system of bona fide acquisition is not applicable in several problems, such as land ownership, unauthorized building, priority and agency by estoppels, etc.The system of bona fide acquisition of real estate has its advantages, but also has more or less some flaws due to its double-edged sword structure. If the interests of the third party are protected too much, the real right-holder will not be protected, for these reasons a trading would become un-safety and the system of registration do-nothing and even social unrest would be caused.[1] In order to avoid unnecessary troubles, the purpose to construct the system of bona fide acquisition of the real estate right in rem is based on the following aspects: the measures must be taken to balance the interests between the real right-holder and any third parties; the limit to protecting any third parties must be set and the interests of the real right-holder must be taken into account; and the static interests of right in rem and the dynamic variation flow of right in rem should be coordinated.With the introduction of The Property Law, the application of the system of bona fide acquisition to the real estate has received the identification of law. The system of bona fide acquisition of real estate is a legal system, in which the person who has no right of disposition transfers the real estate in his name to a third party in a superficially legal way, and if the third party is trading in good faith, the ownership of the property can be obtained by the third party, and the former owner shouldn't exercise recourse.With the implementation of The Property Law, the system of bona fide acquisition of real estate has been applied universally in practice, which has achieved good legal effect and social effect, and has brought timely convenience and quickness in trial practice. But due to the hysteretic nature of the law and the deficiency of statute law, comprehensive detailed provisions of refinement for the system of bona fide acquisition of real estate haven't been provided in The Property Law. At the present, as for the solutions to some problems in practice, there hasn't been a special law which is more detailed, standard and exercisable, which causes renewed interest in controversial topics on the system of bona fide acquisition and public summons and public trust. Starting from traditional concept, historical origin, type, legal construction and legal effect of the system of bona fide acquisition, etc. in combination with the current new problems and situations, the influence and significance of the introduction of The Property Law to the system of bona fide acquisition of real estate are analyzed in this thesis. Based on these situations, according to the author's understanding, some shallow proposals are put forward to improve the system of bona fide acquisition of real estate and establish new laws and regulations on the system of registering the real estate right in rem.