The Discussion Of The Third Person Protection System In Change Of Real Right

In general, the change of real right only involves the interests of two parties, soit’s easy to determine the responsibility of both sides according to their fault, and it isfair. But when there is third party trade, because it involves three parties and two legalrelationships, it often causes complex benefit protection issues. For one specificchange of real right, the third person is specific, but take the change of real right as awhole, the third person is not specific. The interests of a third person represent a kindof market economic order, so to protect the interests of the third person is actually toprotect the market economic order and transaction security. Therefore, the law usuallytends to protect the interests of a third person in order to realize and protect thetransaction security and promote transaction efficiency. So it is important to discussthe third person protection system. Our country mainly protects the third personthrough principle of public summons and acquisition in good faith, and these twosystems have played a positive role in protection of the third person since itsimplementation. But there is also some problems worthy of improving. At present,foreign countries’ civil law involving third person protection is similar to our countryexcept of German. Its main protection system is the real right behavior theory.Without reason theory develops an objective good faith standard on the basis of theprinciple of public summons, namely "acquisition from no right holder: the credibility of land register system"，to realize the protection of the third person.The author wrotethis article in thought of find problem-analysis problem-solve problem, hoping toimprove the protection system of the third people.This article consists four parts:The first part puts forward the necessary of protection of the third person throughtwo cases. The change of real right often involves the third person’s benefitrepresenting the interests of the market order, it is a kind of dynamic transactionsecurity, so it is necessary to protect the third person for the purpose of promotingtrade.The second part introduces the two systems for protecting the third person in ourcountry, one is the principle of public summons, and the other is acquisition in goodfaith. First section mainly introduces the meaning, method and effectiveness of theprinciple of public summons, public summons results credibility, so its way ofprotecting the third person is the legal presumption. The credibility of real estate is byregister, but due to the nature of the possession’s limited credibility, acquisition ingood faith system arises at the historic moment to support it. The registration of realproperty is of absolute credibility on the basis of a country’s credibility, but becauseour country has no unified real estate registration law, the protection of the thirdperson is not fully. Section2introduces the historical tradition, legal basis andprotection mechanism of acquisition in good faith system in the protection of the thirdperson. Meanwhile, the author puts forward several questions about this system andalso puts forward some legislative Suggestions. The third section is the summary ofthe relationship between the two systems, acquisition in good faith system is designedto supplement the principle of public summons system, and they are coordinated toprotect the third person.The third part is foreign countries’ legislative provisions about the principle ofpublic summons and acquisition in good faith system, mainly in France, Germany,Japan, Britain and the United States, Switzerland. These countries have very clear andspecific provisions, similar to our country.The fourth part is some advices of improving our country’s protection system of the third person. For the principle of public summons, in addition to establish realestate registration law so as to realize the truly unified real estate registration, there isalso need to set up outside of the registration authority of real estate registration agentsystem. It will greatly improve the effectiveness of the real estate registration, alsoensure the correctness of the real property register; For bona fide gain system, theprovisions of the laws of stolen goods is not clearly, but the third person in good faithand practice example to buy stolen goods are legion, so the absence of law resultsproblems, such as the public security organs tend to focus on the stolen goodsrecovered, and neglect to protect the interests of a third person, and it is very unfair tothe third person, so the author suggests that with the lost property regulation, alongwith all at the same time, in order to achieve the original holder of the balance ofinterests and the interests of the third person, draw lessons from foreign principles of"open market". In addition, the most important issue is to draw lessons fromGermany’s standard to replace the subjective objective goodwill standards to achievebetter protection of the third person. In addition to German, it used the real rightbehavior theory to protect the third person, the author thinks that the protection of thethird person is indeed useful, therefore, suggests that the essence of the part, one is todistinguish principle stipulated in the general, differentiate between contracteffectiveness and the real right change effect. Actually property law legislationimplemented in2007also has such regulations, and the Supreme Court judicialinterpretation has similar provisions; besides, for the without reason of real rightbehavior theory, its purpose is to achieve the protection of the third person and theestablishment of objective goodwill standards developed by it is very conducive to theprotection of the third person.