Study On Our System Of Bona Fide Acquistion Of Real Propetry

The system of bona fide acquisition has been in close connection with personalproperty since it was originated. So the bona fide acquisition system can also bedeemed the system of bona fide acquisition of personal property. With thedevelopment of social economy, real property transaction becomes more and morefrequently, at the same time, the transaction process becomes more and more complex,and much attention has been focused on the protection of the interests of the thirdparty which is involved in the real property transaction process. Therefore, juristsmade a deep discussion on whether the bona fide acquisition system is applicable toreal property and how it can be applied to real property. Before the system of bonafide acquisition of real property is established by the Property Law of the People’sRepublic of China, there are two opposite academic opinions in respect of whether thebona fide acquisition system is applicable to real property: Positive Theory andNegative Theory, and the mainstream is the latter. Under such circumstances, ourcountry still affirm the system of bona fide acquisition of real property in itslegislation, we cannot but consider the point deeply, thus the author writes this articleon such consideration.This article discusses the system of bona fide acquisition of real property basedon the following four aspects:First, theoretical summary of the system of bona fide acquisition of real property.It mainly includes two parts: in part one, it introduces the definition and historicalresources of the system of bona fide acquisition of real property. Since the system ofbona fide acquisition of real property is developed from that of personal property, wehave to describe its definition and historical resources starting with the system ofbona fide acquisition of personal property, so as to reflect its complete appearance.Beginning with the definition of the system of bona fide acquisition of personalproperty, the article presumes that of real property. The historical resource of the system of bona fide acquisition of real property can also be traced to that of personalproperty which is originated from the principle of Hand muss Hand Wahren in ancientTeutonic law. With the development of capitalistic society, the system of bona fideacquisition of real property is adopted by advanced countries such as France andGermany, and subsequently a complete system is formed. In part two, it introducestwo opinions on the system of bona fide acquisition of real property in our country:Negative Theory and Positive Theory, so as to state the establishment process of thesystem of bona fide acquisition of real property in our country.Second, establishment basis of the system of bona fide acquisition of realproperty. It mainly includes three parts: Functional basis, theoretical basis andpractical basis. Protecting the safety of real property transaction provides thefunctional basis for the system of bona fide acquisition of real property; the principleof publication of real right provides theoretical basis for the system of bona fideacquisition of real property; fault registration and other practical problems providepractical basis for the system of bona fide acquisition of real property.Third: constitutive elements of the system of bona fide acquisition of realproperty. The constitutive elements include four levels: defects of the transferor’sright of disposition, good faith held by the transferee, the transferee’s payment ofconsideration and registration of changes as to real property.Finally, analysis on our system of bona fide acquisition of real property. Thissection discusses the legislative defects and the perfection of such defects. In this part,the author analyses the following four questions: standard of good faith, registrationsystem of real property, legal remedies for original obligee and independentlegislation of real property.