Determination On The Nature Of Imposture And The Civil Liability For Imposture

Current social credit system is suffering from the temptation and test of hugeinterests. The phenomenon that an impostor performs legal actions and cheatsproperty out of others often occurs. Of course this is not a particular phenomenon thatonly appears in today’s China. The phenomenon that an impostor performs legalactions to defraud exists both in ancient and modern times. The author has made acareful study of the laws of Germany, Japan and China in respect of the determinationon the nature of imposture and the civil liability for imposture, and found deficienciesin these laws. Impostor’s performing legal actions is also a problem discussed fierilyin German law and in academic works the solutions of this problem are quite different.On one hand, such heated debate indicates the complexity of the nature of thebehavior; on the other hand, it also reflects the difficulty in reaching consensus amongthe scholars. But in practice the phenomenon that an impostor performs legal actionsoften occurs. In the event that an impostor sells the house by assuming the name ofowner of the house, shall we either protect the third person who claims to apply thesystem of good faith acquisition, or protect the real owner of the house? And do othertrading participants need to bear the responsibility? The same case may have differenttrial results in different courts. Therefore it is of theoretical and practical significance to investigate the determination on the nature of imposture and the civil liability forimposture. There are five parts in this paper.In the first part, from the two cases, one is swindling the certificate of real estateownership by assuming the name of the real estate management department ofQingdao, the other is swindling the notarized power of attorney for selling house byassuming a notary public office of Beijing, the concept of imposture is introduced andthe necessity of investigating this problem is explained.The second part defines the concept of imposture and analyzes the results ofresearches on the nature and legal effect of imposture that are conducted by prominentcivil law scholars of Germany, Taiwan and Chinese Mainland and puts forward theauthor’s own opinions on the determination on the nature of imposture and the civilliability for imposture. And accordingly the author classifies imposture behaviors andexplains the significance of classifying.In the third part, by comparing imposture with unauthorized agency orunauthorized disposition, the author explores the nature of imposture behavior, andthrough analysis and generalization, the author comes to the conclusion that it may beanalogized that the provisions of unauthorized agency shall apply to the legal effect ofan impostor’s performing legal actions. Through investigating the provisions onacquiring realty in good faith by unauthorized disposition in the Real Right Law, theauthor analyzes the irrationality of expanding the unauthorized disposition to apply toand cover the behavior of an impostor’s performing legal actions.In the fourth part, the author analyzes the civil liability arising from impostureand launches elaboration in two levels. The first level is the civil liability of generalsubject, i.e. the undertaking of civil responsibilities of the impostor, the person beingimpersonated and the counterpart; the second part is the undertaking of responsibilityof special subject, including the compensation liability of registration authority andthe civil liability of notary authority.The fifth part is the conclusion. This paper holds that the nature of an impostor’sperforming legal actions differs from that of the assignee unauthorized to dispose(counterpart) accepting the realty from the impostor, the provision on obtaining real right in good faith in Article106of the Real Right Law of the People’s Republic ofChina is not applicable, the loss of the bona fide counterpart shall be borne by otherspecial subject of responsibility so as to balance the interests of all parties andmaintain the transaction security.