Research On The Transfer Of The Real Right Of Real Estate Arising From Non-legal Act

The transfer of the real right of real estate arising from non-legal acts refers to the creation, alteration, transfer or determination of real rights based on facts beyond legal acts. For one thing, this situation exists in public life abundantly, but scholars pay little concern on it when comparing with the transfer of the real right of real estate arising from legal acts. For another, there is just four clauses adjust the transfer of the real right of real estate arising from non-legal acts in Real Right Law of China, which has unclear types and has not made specific provision about how effective the real right arising from non-legal acts is before registration, and whether it has the effectiveness against bona fides third party.Non-legal buildings are not suitable for the act of transferring real estate right.The legacy-support agreement is still debatable that it is legal or not.Distinguishing the transfer of the real right of real estate arising from non-legal acts from the one from legal acts has practical significance in countries and places where implementing “formalism” and “eclecticism” legislation of real right alteration.The theory basis of this topic includes the conception and differences against the transfer of the real right based on legal acts. This article analyzes the specific differences of two types of real right alteration, in altering reasons, applying principles and public meanings separately. The altering reasons are the distinguishing criteria, the essential difference of two types of real right alteration.In Real Right Law of China, the transfer of the real right of real estate arising from non-legal acts mainly includes real right alterations from legal instrument,reasonable constructing and demolishing, inheritance and bequest, and expropriation.The real right alteration from legal instrument only includes formation of judgment in civil judgment and confiscation of property in Criminal judgment. For irrationalities in real right alteration from illegal construction and demolishing,post-registering is allowed. Property changes caused by inheritance and bequest,the legacy-support agreement should be excluded. The compulsory execution and the prescription acquisition should be included in the type of real right change.Registering is not the main element of the transfer of the real right of real estate arising from non-legal acts. However, the validity of the real right after alteration is still disputed. In this article, the real right of the right holder does not have the effect of the third person against the bona fide unless he becomes a nominal rights holder.The third people should be protected from the principle of public trust.In the country implementing “formalism” legislation of real right alteration, the law generally limits the re-disposal actions of right holders, that is, “the real right cannot be disposed before registering”. According to the Real Right Law in China, the real right cannot be altered before registering. Limiting the re-disposal actions could avoid the separation between the real right and the legal right, and bring the principle of publicity back to the real right of real estate arising from non-legal acts. According to the existing rules, the right holders could dispose its real rights without registration,but the assignees cannot obtain the real rights. Post-registration could be offered in accordance with the wishes of both parties.