Protection Of Third Persons. Of Real Property Transfer

Establishment, transfer, alteration or extinction (collectively refer to"Change" ) of property rights is an essential element of property rightlaws. In particular, Change of a real property right, due to its greatereconomic and political significance than Change of a personal propertyright, seemingly has a deeper impact to the property right laws. Issuesregarding protection of third persons in the course of the Change of realproperty right are very complicated since they will involve a large volumeof arguable theories. In this research paper, the author intends todisclose special impacts of the theory of juristic act of property rights( "Property Theory" ), especially the theory of no-cause juristic act ofproperty rights ( "No-cause Theory" ), on protection of the third personsin the course of any Change of a real property right. This will be througha comparison between the modes of Change of a right from debt-creditrelationship ( "Obligatory Right" ) based on autonomy of will or legalformalities, which do not involve the Property Theory, and the mode ofChange of a property right based on legal formalities, which adopts theProperty Theory. Furthermore, in combination with the newly issued PRCProperty Right Law ( "PRL" ), the author will comment and analyze theChinese real property registration system and Chinese legislative choicefor Change of a real property right. Then the author' s own ideas willbe attached.This research paper comprises four parts. The first part will mainly introduce the origins for the issues of protection of the third persons' interests and reasons for such protection. This part will also cover the concepts and forms of the Change of a property right, scope of the third persons who need to be protected, as well as a brief clarification that protection of such third persons' interests is actually a security for the transaction.The subsequent part mainly analyzes the mode for the Change of debt-credit relationship which is based on autonomy of will or legal formalities without involving the Property Theory. Based on such analysis, as well as discussion of their respective registration system concerning the real properties, it will be addressed that in case of Change of an obligatory right, not differentiating the essence of an obligatory right and a property right will cause unexplainable theoretical issues.In the third part, based on detailed clarification over the special functions and theoretical preponderances of the Change of a property right by legal formalities for protecting the third persons' interests during such Change, a conclusion will be reached that the No-cause Theory is most favorable to such protection. This will be further testified in the fourth part through clarification on the impacts of the principle of public notice and public faith and the principle of acquisition in good faith over the protection of the third persons' interests, and moreover through analysis to the relationship between these two principles and the Property Theory.In the next part, the author will focus on the PRL with a further consideration on the registration system of real property there under and the choice of legislators for the mode of the Change, to conclude that so far the Chinese legislation is based on the modes of Change of an Obligatory Right by legal formalities and a simultaneous adoption of some part of the Property Theory. Finally, the author will presents her own views regarding the application of the Property Theory in China.