The Study On Good-faith Acquisition Of Real Estate

Good-faith acquisition system is a special provision on unauthorized disposal, namely a restriction regarding ownership efficacy. It is the result of balancing and choosing between safety and convenience of ownership protection and trade. In traditional civil law, good-faith acquisition system only applies to movable property ownership, not including real estate ownership. By applying good-faith acquisition system into the area of real estate ownership, we can protect maximatily the interests of a third person who is in good faith, thus promoting the orderly development of the socialist market economy. Section No.106 from Property Law,2007 provides a unified regulation on the good-faith acquisition of movable and immovable. However, due to the feature of real estate as well as special provisions attached to the system of registration of immovable, the situations in practice vary in a complicated way. A lot of problems exist in the application of good-faith acquisition system regarding real estate, which makes it difficult to practice good-faith acquisition of real estate.Based on provisions from the current Property Law in China, applying the methods of comparative analysis and empirical analysis, this essay presents a systematical analysis on real estate good-faith acquisition system, aiming at perfecting the practice of real estate good-faith acquisition. The essay mainly includes four parts.The first part is a comparative analysis on different legislations concerning real estate good-faith acquisition system in different countries, illustrating the reason why different countries have different regulations about real estate good-faith acquisition system is that their regulations on Property rights alteration modes and Registration and Examination system are diversified. By analyzing the two different theories with regard to real estate good-faith acquisition system in Civil Law academic region, namely Affirmation theory and Negation theory, we come to the meaning of applying real estate good-faith acquisition system in our country.The second part analyzes the theoretical basis of good-faith acquisition system. Good-faith acquisition system originates from the Hand-in-Hand principle in Germanic Law and combines the reasonable element from Prescription acquisition in Roman Law, which contribute to the theoretical origin and historical evolution of Good-faith acquisition system. Real estate good-faith acquisition system is based on public credibility principle and the principle of balance of interests of real estate registration.Analysis of the constitutions of real estate good-faith acquisition and comparison with movable property make up the third part. Personal views on the existing problems in real estate good-faith acquisition system application are presented, including we should define the essentially to sanction in entitled the dispose of the connotation which is to practice the good-faith acquisition of immovable system application problems; and the cognizance of good-faith should adopt the objective standards and we should determinate reasonable price as market prices and trading habits and required paid; to carry out the delivery as the main elements of a realty against the good-faith acquisition.The fourth part illustrates the legal consequences of applying real estate good-faith acquisition system and ways of right relief to former owners. The legal consequences are related to the real-right-alteration relationship and debt relationship between former owner, no-right-person and bona fide assignee. After the good-faith acquisition of real estate, the third person in good faith acquires real estate ownership whereas the former owner forfeits real estate right and is not allowed to ask for returning of the original, but can, according to the law, request the responsible person concerned compensate for a loss.