A Further Study On Untitled Property Disposal

The sale of property of others is a typical example of untitled property disposal. Mr. Wang Zejian called it "the spirit of civil law". In different modes of property right alteration, the definition of untitled property disposal and the validity of untitled property disposal contract are quite different. Under the doctrine of autonomy of France, the contract is invalid. While according to the real right formalism in Germany, the contract is valid. After studies the untitled property disposal contract and its remedies under both French and Germany laws, this essay finds that, although the validity of the contract varies on these two laws, the legal effects are the same, which is the buyer cannot acquired real right of the subject matter according to an untitled property disposal contract, and the bona fide acquisition system shall be its civil remedy. The difference of validity of the contract lies in juristic logistic deduction rather than value orientation.Then the essay analyzes the juristic framework of the obligation formalism in China law, regulates transference of real right is composed by a consensus and act of delivery (or change of registration). Normally, the consensus is general and including the effective intention of transfer both real right and obligation right. And act of delivery or change of registration is factual behavior which does not need declarations of intention nor consensus to constitute its concept. Although Article 15 of Property Law of P. R. China makes a clear distinction between the reason and result of transference of real right, there is no definite legal regulations differentiate between juristic act of real right and act of obligation right. In consideration of the essential differences between factual behavior and juristic act, system of null and void juristic act should not apply to any act of delivery or change of registration. Only the contract considered to be invalid, can the legal effect of the buyer cannot acquired real right of the subject matter according to an untitled property disposal contract achieve.On the basis of the above, this essay analyzes the juristic logic and legal value of Article 3 of Interpretation of the Supreme People’s Court on Issues Concerning the Application of Law for the Trial of Cases of Disputes over Sales Contracts. In the light of systematic interpretation of law, this essay argues that under the obligation formalism, validating an untitled property disposal contract not only impassable in juristic logic, generally jeopardizing the static the safety of property, but also disintegrating the bona fide acquisition system by collapsing its applicable preconditions.Finally, the essay summarizes the essential role and due effects of untitled property disposal in China legal systems. It advocates that untitled property disposal contract should be null and void when no ratification of the obligee as well no acquired lawful right of disposition of the disposer. The last Chapter argues the reasons Chinese legislators refuses real right formalism, and looks ahead the further development of untitled property disposal in civil law.