The Legal Protection Of The Dealing Safety In Property Rights Alteration

The dealing safety in property rights alteration is always a major issue in legalpractice. Every country considers the dealing safety in property rights as an importantconsideration standard. At present in China, the real right change mode theory ofgeneral is said "creditor’s rights formalism" and has the following characteristics: first,the creditor’s rights behavior and real right behavior merge, the agreement ofcreditor’s right absorbs the agreement of property right, and no real right behaviorindependently existences (namely negative separation principle), as a public means,the delivery or registration is one kind of factual behavior. Second, since there is nopresence of real right behavior, the effectiveness of the real right changes, of course,influenced by the behavior of creditor’s rights behavior, so will not admit theabstraction of real right behavior (namely negative abstract principle). In "thecreditor’s rights formalism" reflection as a starting point, this paper discussed on threeparts.The first part,"creditor’s rights formalism" lacks of protection of the safety oftransactions. First, theoretically, creditor’s rights behavior can absorb real rightbehavior, but this will bring a logical consequences: in "creditor’s rights formalism"legislation, the creditor’s rights behavior absorb the real right behavior, businesscontract becomes a legal action that can emerge creditor’s rights, and the effect of realright change can occur hybrid nature of the legal act, the original real right behaviorrequires effective elements, such as the parties having right of disposition, the subjectmatter achievement (that is, the subject matter already exists and specialization), toachieve public means, etc., were also absorbed by creditor’s rights actions. Therefore,the original real right behavior effectiveness flaws (such as sanctions have notdisposition), may turn to affect the validity of the creditor’s rights behavior inlegislation, it often breeds discord, in our "contract law" the provisions of article51isthe optimum cases. In the creditor’s rights formalism mode, through the mostpowerful academic speaking said uncertain effectiveness contract. It not only against the buyer’s protection, but also confuses the development of some of the normal trade.And in the framework of the formalism of creditor’s rights, it is a very arduous thingto proof the unauthorized disposal contract to a valid contract. Because effectivetheory against "creditor’s rights formalism" logic, it is difficult to explain such aquestion: in the cases that buyer does not constitute a good faith acquisition, aneffective creditor’s rights contract (has no right to dispose contract) plus a factualbehavior (delivery), can not bring about the occurrence of ownership transfer effect.Second, now that the real right behavior is not exist, people will not admit that realright behavior is abstracted, the effect of real right change is influenced by thecreditor’s rights behavior effect, if the creditor’s rights behavior is valid because of theflaws, even if the finished publication means, also don’t happen to change of real right,the other party can’t effect according to the public means of the public credibilitysuccessfully obtain a real right. Then, the means of public credibility was weakenedto a third person and hidden troubles to the obtaining of successfully a real rightfollowing the principle. The parties in the deal will often inspect the validity of thetransaction before the deal and can interfere with the transaction efficiency.The second part, the investigation to the effect of four real right change mode oftransaction security the mainland legal system. The continental law system of realright change mode can be divided into four kinds: the meaning doctrine, and thecompromise in the meaning doctrine, and formalism, the compromise in the propertyrights formalism. The concept of the continental law system of mature legislation, theformer three real right change mode does not take real right behavior abstractprinciple and can not provide a powerful support to public summons, and being shortof the transaction security protection, should not become the real right change modeof general choice. And the other mature legislation-real right behavior under thegeneral theory of the German real formalism mode is worth referencing. Real rightbehavior theory can be summarized as two principles: first, the separation principle, itrefers to the real right change and the change of creditor’s rights as two legal factprocessing, Second, the abstract principle, it refers to the real right change from thecause and effect of behavior principle. Real right behavior theory can maintain theclear and definite of civil law system, and protect the transaction security role, can be adopted by our country’s legislation.The third part, combined with the real right behavior theory to our countrytransaction security protection theory discussed the perfection of the. Separationprinciple helps to construct clear legal system and to provide a clear effective methodfor the judge. The main value of the principle of separating lies in better embodyingthe party autonomy, the parties can produce different rights according to their ownintend, and can produce different legal relations. In the culvert radiation effect on thesafety of transactions, it also plays a protective effect. Separation principles canprotect the creditor’s rights behavior from real right behavior’s severability (as in hasno right to dispose of the case), and the influence of the parties may enter into acontract, rapid implementation of the creditor’s rights behavior, so as to achieve thepurpose of encouraging trade. In the unauthorized disposition, on the basis of theseparation principle, it can smoothly draw the conclusion that the contract ofcreditor’s rights is valid, so as to provide solid theory foundation to the [2012]8article3.And in the creditor’s rights behavior appears defect in the circumstances, theabstract principle cut off creditor’s rights behavior (reason behavior) defects in rembehavior influence. Compared with legislation not applying the abstract principle, thelegislation that adopts the abstract principle can provide a better protect to the buyer,especially the interests of a third person. Abstract principle will not produce theresults of injustice. Trading in the third person is the embodiment of the social andeconomic order, so the abstract principle pays more attention to the protection of thethird person. Abstract principle protects the "malicious third person"(that is, the thirdperson knows or by gross negligence, does not know prior trading defects), unless thethird person performs malicious collusion, he not should be identified as malicious,because such a third person in the trading shall be protected by law, and should not bestricture subjectively. At the same time, in the abstract principles of legislation, theseller is fully taken care of. The seller in advance can protect himself through theobjection defense registration, court for limited sanctions order to protect himself,after the fact also can through the claim for compensation system. Abstract principlebalances the interests between the parties, and realizes the higher level of justice. Good faith acquisition system can’t take the place of abstract principle. Abstractprinciple is the firm support of the demonstrative principle of real right and good faithacquisition system. The acquisition in good faith and the abstract principle on theprotection of transaction security each have their focus, and abstract principle is usedin a wider range. Therefore, adopting the principle of separation, our country’slegislation should also take the abstract principle, demonstrative principle of real right,good faith acquisition system, abstract principle constitute the triple protectionmechanism to protect the safety of transactions.