On Recognition Of Goodwill Acquisition

The Property Law of the People’s Republic of China promulgated as of October1，2007makes the provisions on the good will and enlarges the application scope of good will intoreal estate and other property rights, which is an important breakthrough and advancement inthe legislation in China. Many scholars have proposed the defects in the legislation and thesuggestions for the improvement rfom the perspective of the goodwill acquisition system,especially the real estate goodwill acquisition system. This paper takes an infringementdispute case applicable to the goodwill acquisition system as an example, analyzes theconstituent elements of the goodwill acquisition system and proposes the opinions of theauthor on the goodwill acquisition.This paper adopts the form of the case analysis report and includes six parts andconclusion.Part One introduces the case, decision and the legal issues airsing rfom the case. Thispart mainly introduces the basic information on the case and the decisions of the court on thecase, that is, another Zhou transferred a succeeded house to a Lin and went through thechange registration formalities, two years later a Zhow as the joint owner of the house,brought a suit against another Zhou and the Lin and required them to return the house andcompensate for the loss，the court held that the Zhou disposed of the jointly owned propertywithout permission, which inrfinged the legitimate irghts and interests of the Zhou anddecided another Zhou to compensate the Zhou for the losses, and rejected the claim againstthe Lin with the reason that the Lin acquired the house with good will. And in the meantimethis patr proposes the legal issues arising from the case.Part Two elaborates the concept and the legislation purpose of the goodwill acquisitionand the legislation summary of China on the goodwill acquisition system. This part brieflyelaborates the concept and the legislation purpose of the goodwill acquisition and thelegislation of China on the goodwill acquisition system, paving the base for the recognitionand elaborations of the constituent elements of the goodwill acquisition in the following parts.Part Three discusses the recognition on the unauthoirzed disposal. This part elaboratesthe concept of unauthorized disposal, namely, the prerequisite of the goodwill acquisitionsystem, and clearly states the constituent elements and the categoires of unauthorized disposal.Part Four elaborates the recognition on the goodwill. This part analyzes and discusses themeaning, judgment criterion of the goodwill, criteiron points of the judgment on the goodwill，exclusion of the goodwill and the proving rules of the goodwill and proposes that thegoodwill means that the third party is unaware that the transferor has no right of disposal andthe third party has no gross negligence.Part Five elaborates the recognition on the transfer with reasonable price. This partmainly analyzes the constituent element of the transfer with reasonable pirce of the goodwillacquisition system, makes judgment on reasonable price and the aspects from which to judgethe reasonableness of the price in the judicial practice, the requirements of the reasonableprice on the performance period and whether the price for the transferred has been paid.Part Six discusses the recognition on the completion of the legal property conversionpublicity. This part mainly elaborates that the special property conversion of the goodwillshould conform to the relevant provisions of the property law，the moveable property shouldbe possessed by the transferee and the real estate shall be subject to the change registration.Part Seven is the conclusion. This part mainly concludes from the above analysis that theLin in the case has constituted the goodwill as the third party, the oirginal owner (the oirginaljoint owner) the Zhou shall have no right to require the Lin to assume the tor liability，norrequire the third party to return the property. The original owner may require the transferor,namely the unauthorized disposer to assume the tort liability.