The Theoretical Basis And The Application Of The Principle Of Distinguishing Effectiveness

The theory of verfugungsgeschafte is one of the principles of the property law. Research the connotation, theoretical basis and the practical significance can contribute to study the field of application. The theory of verfugungsgeschafte in the property law has the great significance. Because it has some important system effects, and research it can help us to understand the other relevant system. The basic connotation of the distinguishing principle is that make a distinction between the reason and the result of the change of the property right and give the difference legal rights. The theoretical basis of the distinguishing principle in property change is distinguish between the right to control and the right of claim, between liability and act of disposition behavior. The application of the principle can provide the interests of third party, the non-breaching party and business with effective protection. It also can promote to become an organic unity system of civil law and property. At present, Chinese property right authorized the distinguishing principle is too simple and it is only a matter of principle as well. It cant figure out the complicate facts powerful in the real life. The distinguishing principle is based on the property right of Germany, or it also denies the independent behavior of the property right. In the debate whether we should thoroughly continues and receives the juristal act of real right, it has attacked by supports. In order to apply the application can make more accurate, and evolve a good organic unity system with unauthorized disposition system. It’s necessary to analysis research thoroughly on the basic theoretical. This thesis put emphasis on research the currently real right law, contract law, other relevant law and relevant judicial explanation and other academics’ theoretical research. By using the method of comparative analysis and empirical analysis to study logically about the distinguishing principle. This thesis is made up of three chapters.Chapter one discuss the theoretical basis. The basic content of the distinguishing principle mainly include two aspects. One is the distinction between the reason act and the result act, another one is the distinction between validity of the contract and the transference of property. The distinguishing principle in the theory of the real right act is based on research the effectiveness of the principle of distinction. This chapter discuss the relation between the theory of verfugungsgeschafte and the principle of distinguishing effectiveness, then analysis the dispute what in the theory of the real right act, finally we reach the basic theoretical basis of the effectiveness of the principle of distinction:distinguish between the right to control and the right of claim, distinguish between the burden behavior and the act of disposition.Chapter two discuss the regulation about unauthorized disposition and bona fide acquisition which under the principle of distinguishing effectiveness. The different choice of the pattern of property right change will have a different influence on the effect of the burden behavior and the act of disposition. Currently there are four patterns of property right change in the world. They are intentionalism, formalism, the principle of delivery, intentionalism combined with formalism. In our country, the pattern of property right change express mainly about creditor formalism, and it also includes some other patterns. The effectiveness of the principle of distinction has the significant practical value. Combine together with the effectiveness of the principle of distinction, unauthorized disposition and bona fide acquisition, the interests of the third party can be effectively guaranteed, in order to ensure the security of the transactions.Chapter three discuss the effectiveness of the principle of distinction reflect that the alteration of real right, the change of real property right and the guarantee real right change in china. This principle is widely used in civil and commercial trial practice is a right choice. When the people’s court trial the dispute cases of the transfer of the property right of the immovable contract, should according to article15of the property law, combine with the effectiveness of the principle of distinction, adhere to the basic method of the contract to contract, registration to the registration, and determine the effect of the transfer of the property right of the immovable contract by law correctly.