On The Effectiveness Of The Unauthorized Disposition Contract Taking The Example Of The Selling Of A Jointly Owned House By Partial Joint Holders

The discussion on the effectiveness of the unauthorized disposition contract is of greatsignificance to the construction of the civil law system in China. The Common Law countries,the international conventions as well as most continental law countries hold positive attitudetowards the effectiveness of the unauthorized disposition contract. Since China has introducedthe concept of legal act of property right in Germany, it is natural to accept the independenceof the act of property right, which is the inevitable result of the division between the propertylaw and the contract law in the civil law system. Due to the non-recognition of the abstract ofthe act of property right, the effectiveness of the property right alteration is often under theinfluence of the effectiveness of the contract; on the contrary, the effectiveness of the propertyright alteration has the effect on the effectiveness of the contract, which is lack of theoreticalbasis.The differences between the expression of intention of the invalidity of the contract andthe expression of intention in the act of property right lie in that the expression of intention ofthe parties in the contract law which affects the invalidity of the contract shall not only belimited to one party, nor determined by the third party to the contract, but a penalty on theconsented illegality of both parties. The expression of intention to dispose the jointly ownedproperty rights to the buyer by the partial joint holders violates the compulsory provisions inthe property law, and owing to the fact that the property law regulations have the nature of thesubstantial law and the procedural law, the disposer also violates the procedural regulations ofthe property conversion publicity and the act of property right is also invalid. The part withthe act of property right in the unauthorized disposition contract is invalid due to its violationof the compulsory regulations in the property law, but it is only involved in the execution ofthe contract, not to the whole effectiveness of the contract. In addition to the managementregulations in the compulsory regulations, the regulations affecting the effectiveness of thecontract should include the exclusion of the property right regulations. The commencement ofthe contract is the prerequisite of the execution of the contract and therefore the opinion thatthe subjective execution of the contract cannot cause the invalidity of the contract delays theappraisal of the effectiveness of the contract to the execution of the contract, which has thelogical conflict in the sequence of the contract course. If the contract is valid, the right of claim of the contract creditors has conflicts with theright in rem of the property right owners in the invalidity of the act of property right, andthere is lack of further research in the theory and practice on the handling of the demand ofthe buyer to execute the contact. This paper takes the unauthorized disposition case of thehouse heritage by the partial heirs as an example and endeavors to make interpretations fromthe execution obstacle theory of the contract. The jointly owned property is sold without theconsent of all joint holders, the demand by the buyer to require the partial joint holders toexecute the claim of delivering the house and handle the property right change registration inaccordance with the contractual stipulations is lack of the base in the property law, is unableto have the effect of property conversion and belongs to the impossibility of performance inthe law. The claim to execute the contract has the same legal effect as the unauthorizeddisposition in the property law, both of which is invalid, and which does not interfere with theprotection of the static security of the property right.This paper mainly applies the contrastive analysis, regulatory analysis and value analysis,by the study on the connotation of the unauthorized disposition under different models in theproperty rights in different countries and on the basis of the clearing of the existing doctrinesand theories, makes comments on the legal provisions of Articles52,110and130in theContract Law and Article106in the Property Law in China to demonstrate the validity of theunauthorized disposition contract and proposes the legislation suggestions for theeffectiveness of the unauthorized disposition contract in the General Principles of the CivilLaw in China to achieve relative balance between the property owners, the unauthorizeddisposers and the buyers, maintain the freedom, justice and efficiency of the contract,effectively maintain the transaction order and transaction safety of the market and promote theprosperity and sound development of the market economy.