Research On The Abstraktionsprinzip Theory Of Real Right Act And Bona Fide Acquisition System

Since Savigny, the founder of German Historical School of law, put forward the theoryof real right act theory in the nineteenth Century, the theory receives great repercussions in theworld law circle, especially the juristic act of real right itself and the affirmation on itsabstraktionsprinzip receives a lot of controversies, on which divergent opinions by thescholars in different countries pop up. Among them, the countries with Germany as therepresentative recognize the juristic act of real right and claim the abstraktionsprinzip theoryof real right act; the countries with Switzerland as the representative recognize the juristic actof real right but deny the abstraktionsprinzip theory of real right act; the countries with Franceand Japan as the representative do not recognize the juristic act of real right even theabstraktionsprinzip theory of real right act.This thesis introduces the abstraktionsprinzip theory of real right act in China and theapplication of the bona fide acquisition from a case; then this part introduces the source andconcept of the abstraktionsprinzip theory of real right act and the application of the theory bythe representative countries; next this part analyzes the application of the abstraktionsprinziptheory of real right act and the bona fide acquisition in our country. On the basis of detailedanalysis and elaborations on the concept, theoretical basis and the component of the bona fideacquisition, this part further analyzes the difference and connection between theabstraktionsprinzip theory of real right act and the bona fide acquisition. The author holds thatto a certain extent the bona fide acquisition may be considered as specific application of theabstraktionsprinzip theory of real right act in our country. Namely, where the transferee failsto claim the rights with the bona fide acquisition system, the reason act of the juristic act ofreal right act(such as creditor’s rights act) was identified untenable, invalid or revocable,correspondingly the juristic act of real right act has also been identified untenable, invalid orrevocable. Next, the author also elaborates and analyzes the necessity and significance ofconstructing the system for the bona fide acquisition. Finally, on the basis of analysis on thedefects of the abstraktionsprinzip theory of real right act, the author proposes the reasonablerestriction on the application of the theory in the judicial practice, mainly reflecting in strictapplication of the bona fide acquisition, strict control over the applicable scope and conditions,safeguarding transact security and the interests of the third party while considering the interests of original obligee as far as possible so as to maintain the interest harmony of thecivil subjects.In addition to introduction and conclusion, this thesis consists of five parts: Part Oneproposes the issue, mainly introducing the cause, and facts of the case and analyzing thefocuses in dispute of the case; Part Two introduces the concept of the abstraktionsprinziptheory of real right act and its application in different countries; Part Three introduces andanalyzes the application of the abstraktionsprinzip theory of real right act and the bona fideacquisition in our country, such as our attitude toward to the abstraktionsprinzip theory of realright act, the concept of the bona fide acquisition, theoretical basis, component, the differenceand connection between the abstraktionsprinzip theory of real right act and the bona fideacquisition and the necessity and significance of the construction of the bona fide acquisition;Part Four elaborates the defects of the abstraktionsprinzip theory of real right act and thereasonable restriction on the application in the judicial practice; Part Five responds to the casecited in the beginning and analyzes the management on the case by the court in the judicialpractice and the author’s opinions.