The Research Of Legal Issues About Bona Fide Acquisition Of Real Estate

The bona fide acquisition of real estate varies in countries’ legislation and iscontroversial in the academic circle. As such system was imported into the RealProperty Law of RPC, dissimilarity in physical form, delivery, and public meansbetween personal and real estate will lead to different legal application. Therefore, itis essential to have a research on the related legal problems, since controversy onnature and constitutive requirements of bona fide acquisition is still quite heatedwithin the scholars and practice.The article is divided into three chapters.In the first chapter, starting from the concept and origin of acquisition,comparable and historical method was used to analyze how the development history,theoretical basis and real right alternation modes influence system construction ofacquisition of real estate.The second chapter systematically analyzes the constitutive condition and legaleffect of bona fide acquisition and focuses on the efficiency of unauthorizeddisposition contracts and identity of good faith. A contract, as an agreement forcreating rights and obligations freely, must possess three important documents toensure its effectiveness: the first is internal elements of freedom and true declarationof contract; the second is subject elements of parties having corresponding capacityfor civil conduct; the third is legitimacy elements of abidance by law and custom. A contract becomes effective when possessing the above three documents, no matterwhether people obtain right of disposition or not. Real right mains in the pending statebefore obligee’s ratification of unauthorized disposition. Under this circumstance, acontract act is an act of debt, and effectiveness of a contract is irrelevant to obligee’sratification.Although acquisition of personal and real estate was imported together into theReal Property Law of RPC, connotation of constitutive requirement between personaland real estate differs, degree of credibility between possession and registrationdiffers, and standard of good faith differs. Good faith of personal property relies on‘do not know and should not be known’; Good faith of real estate relies on ‘do notclearly know’ yet.‘Do not clearly know’ requires a third party positively review realestate registers. As long as the third party reviewed, it should be affirmed as good,whether the reason of ‘do not clearly know’ is in fault will not be considered. Thereare two views about judgment of good faith time point that worth discussing. Oneadopts date of application as the time point, the other prefers the date of completion ofregistration. The latter is accepted in this article. Since the legislative intent ofacquisition is to protect the interests of a third person and maintain the transactionsecurity, extending the effective time to give a chance for a third person, an actor, anobligee to correct mistakes is more consistent with it.When constitutive conditions of bona fide acquisition are satisfied, it will presentlegal effects on obligatory right and real right. Obligatory relationship is reflectedamong the obligee, the assignor, the third party with good faith and the registrationauthority. The original obligee who suffers a loss due to the assignor’ unauthorizeddisposal can claim rights by infringement claims, breach of contract claims, or unjustenrichment claim. The obligee can also file a claim with the registration authority if itis at fault. The assignor and the third party is related in obligatory relationships.Property relationship is reflected in that the original obligee loss real right, the thirdparty with good faith acquires real right, and the original obligee regain real right inparticular cases(the third transfer original item to the assignor).The third chapter discusses two questions in application of bona fide acquisition. One is about the range, namely the goodwill protection due to registration mistake.The other is whether imposturous disposal applies to acquisition or not. The bona fideacquisition was established by the article106of the Real Property Law of RPC, ofwhich the constitutive condition is difficult to distinguish and is too rough to be putinto practice. The inconvenience leads to disagreement of viewpoints onunderstanding of unauthorized disposal. Some think that bona fide acquisition isapplicable if only disposal is unauthorized. Others argue that the range of applicationof bona fide acquisition is premised on registration mistake. Imposturous disposal islegally unauthorized disposal. Faking the identity to dispose the oblige’s propertybelongs to fraudulent conduct and illicit transaction, which certainly do not apply tobona fide acquisition.