A Tentative Study On The Adaption Of Law Of Imposed Disposal Of Real Estate

The typical situation of the cases of Imposed Disposal of real estate which the paper tries studying is as follows: the impostor “cheated” both the bona fide counterpart and registration authority successfully, making the corresponding rights on the real estate registered in the name of the counterpart in good faith. In this situation, there are two questions: whether the registration in the bona fide counterpart’s name is substantially valid —— for example, the bona fide counterpart acquired the ownership or mortgage of the real estate ——; and which system could answer the former question. While the judicial practice shows different solutions, theoretical controversies have also existed. Shortly after Property Law was promulgated, the case the paper tries studying was only one of the samples which help expound the applicable scope and the composition elements of the system of the bona fide acquisition of real estate. However, with research continues, scholars’ perspectives have gradually moved from the interpretation of the rules of the legal system to impersonation itself, although most conclusions come from the bona fide acquisition or the analogy of agency system. The change of perspective means the impersonation has some independent research value and should be observed and summarized under some basic theories of civil law. Therefore, when the paper divides chapters according to the scholars’ points of view in the choice of legal system, there will be the analysis of the impersonation in the corresponding sections of the chapters.Although the literary meaning of article 106 of Property Law seems to include “imposed disposal”, the point which reads that the “unauthorized disposal” in article 106 of Property Law should be accompanied by the falsity of real estate register theoretically seems more persuasive. Besides the strict application of the bona fide acquisition, the specificity of the imposed disposal of other’s house also tells that there is no chance. With the theory of interpretation of expression of intention, it can be found that while the counterpart is surely one subject of the contractual relationship, the impersonated party is the other, which means the absence of the necessary “unauthorized disposer-- counterpart-- original holder” three-sides structure for the application of the bona fide acquisition. So the dispute between the bona fide counterpart and the impersonated party cannot be solved in this system.The identification of the subjects reveals the similarities between imposture and agency: for both a principal and an impersonated person, a third one’s expression of intention makes them the other party of a contract, and both of them have to figure out whether the contract is valid to them. The same nature of the appearance of agency and identity also paves a way to application of analogy of apparent agency. However, involved in formal legal system, agency is still different from imposture. Considering that the imposture easily jeopardizes economic activity and the risk condition of current society, only if the accountability of the impersonated party reaches a higher standard than that of the principal in an apparent agency, should the counterpart in good faith deserve the protection.The imposture usually comes from an illegal motive. Then the act itself or its preparation constitutes a crime, which seemed to be a factor shaking the validity of the contract as some scholars point out. A direct link between criminal illegality and a contract’s validity will blur the boundary between criminal law and civil law, causing excessive intervention of public power to the privatautonomie. Article 52 of Contract Law is always the legal basis for judging the legal effect of the contract. It can be concluded from the existing interpretation of item 1 and 3 in the Article 52 that constituting a crime is not equal to the direct damage to “national interest”; the impostor’s illegal motive does not belong to the “illegitimate purposes” in “perform under the guise of legitimate acts which conceal illegitimate purposes”—the latter’s subject refers to the contract. On the other hand, since the illegal motive is also considered by some scholars as a signal of nonexistence of expression of intention, then no agreement is reached and there is no room to discuss the validity of a so-called contract. However, despite some differences, there is a broad consensus that motive or purpose is included among the elements. In addition, by comparing criminal fraud and civil cheat, we can find that they are not either-or, but special-general. So a criminal fraud also belongs to the civil cheat in article 54 of Contract Law, and the contract involved does exist.The first three chapters have provided some solutions to different situations of case the paper tries studying, so the last chapter lists them. Besides, the conclusion chapter also discusses the effect of the contract when the counterpart is not in good faith: invalid, either because of conforming to the hold intendment realized by the counterpart, or because of according with “do so with auctioneers to damage the interests of others”.