Study On Transfer Of Real Right Based On Legal Document

This article discusses transfer of real right based on legal document. Although "Real Right Law of the People’s Republic of China" has been practiced for several years, but comprehensive and systematic articles about transfer of real right based on the legal document are rare. However, transfer of real right based on legal document often appears in judicial practice, if theory is not sufficient, the dispute will follow. Therefore, this article intends to conduct a comprehensive and systematic study of transfer of real right based on legal document, in order to be able to start a discussion.In addition to the introduction and conclusion, this article is divided into four parts, about 30,000 words.The first part of this article is abut the fundamental question of transfer of real right based on legal document and the theoretical basis that law make it as an exception. In case the creation, alteration, alienation or termination of a real right is resulted from a legal document of people’s court or arbitration committee, the real right shall come into effect upon the effectiveness of the legal document, register or delivery is not longer the effective elements of the real right’s creation, alteration, alienation or termination. This rule is an exception to the publicity principle in changing real right. I think when legal document itself can cause the creation, alteration, alienation or termination of real right, if law still requires that real right shall come into effect after registration or delivery in accordance with law, the effectiveness of legal document, the credibility of legal document, interests of right holder can not be protected. After measuring the value, "Real Right Law of the People’s Republic of China" decided to narrow the scope of publicity principle. Therefore, it is defined as an exception.The second part of the study focuses on the scope of legal document that can cause the creation, alteration, alienation or termination of real right when legal document come into effect. If a legal document’s purpose is to achieve or confirm a legal relationship, it can not directly transfer real right. Only legal document that aims to form a legal relationship can directly transfer real right. The people’s court and arbitration commission’s documents that intend to withdraw the contract and part a commonly owned res directly lead to changes in real right. In addition, verdict that the purpose is to remove debtor’s acts against the interests of the creditor can transfer real right. Due to the particularity of enforcement, court’s document that the content is to transfer real right of realty, auction a real right can directly transfer real right in enforcement proceeding. As arbitration commission’s documents that the purpose is to confirm to offset debt by other things and civil mediation contain autonomy ingredients, they can not guarantee the interests of other creditors, it should not be able to recognize it as a document that can directly transfer real right. The people’s court’s document that the content is to offset debt by other things can not directly lead to transfer real right too.The third part of this article discusses the effect of real right based on legal document before publicity. When real right is created by legal document, real right’s true holder dislocate with legal holder before true holder’s registration or delivery. Despite this, real right’s effectiveness is complete. Where a realty or chattel is under an unauthorized possession, the right holder may require the removing of the original object. In case a real right is under obstruction or may be obstructed, the right holder may require the removing of the impediment or the termination of the danger. When the third person deal with the real right’s legal holder, the interests of the third person and real right’s true holder both need to be protected. Bona fide acquisition system is better than the credibility of the publicity system to balance the interests of both sides. So when third person acquired the real right in good faith from the legal holder, the true right holder’s real right can not against the bona fide third party. But the right’s true holder can require legal holder for the compensation.The fourth part of this article focuses on the disposal of real right that is created by legal document before publicity. The right holder can dispose the object without any restrictions. I think rule 31 th of "Real Right Law of the People’s Republic of China" is to guarantee the continuity of the realty on the realty register, not to limit the right holder’s disposal right. And this rule only applies to the realty disposal that right shall come into effect after it is registered. Therefore, the right holder has the right to sign a contract with others to dispose the reality before registration. Just in the process of registration, the true right holder needs to register the realty in his own name first, then register the realty in the name of the person that get the realty from the contract. When the realty disposal that right shall come into effect before it is registered, the real right of realty shall be established as of the effectiveness of the contract. But they shall not challenge any bona fide third party before the real right of realty is registered in the registration organ. The right holder of the real right of a movable property can freely dispose his right without any restrictions. The right holder can dispose like disposing the real right of a movable property than has correct rights appearance, just can not apply rule 27 th.