An Analysis Of "Ma Like,Jing Wenyuan Housing Dispute Case"

With the continuous development of market economy in China,market trading behavior is becoming more and more active.At the same time,issues of transaction security are becoming more prominent,especially problems regarding people who do not have the right of disposition dispose others'property without authorization frequently occur in reality,which seriously affects market order and transaction security.Therefore,this research is of great practical significance.At present,unauthorized disposition rule in our country has not yet been systemized.There are still some controversies about the nature,effectiveness and legal application of unauthorized disposition in the field of theoretical research and judicial practice."Ma Like,Jing Wenyuan Housing Dispute Case",as a typical case on unauthorized disposition,its judgment has an important guiding significance in affirming unauthorized disposition in the practice of our country.There are a lot of similarities between unauthorized disposal and other legal acts like unauthorized agency,which need to be differentiated carefully in practice.Especially when dealing with cases of unauthorized disposition of real estate,it is necessary to combine the specific circumstances of real estate registration in order to accurately characterize it.On the validity of unauthorized disposition contracts,there are three kinds of viewpoints in academia:“contract is valid" theory,"validity to be determined" theory,"contract is invalid”theory.With the introduction of relevant judicial interpretation,creditor formalism under the theory of“contract is valid”gradually becomes the mainstream view as it is more in line with the reality in China.The Supreme People's Court's verdict on "Mali Ke,Jing Wenyuan Housing Dispute Case" outlines the basic principles for judiciary authorities to deal with disputes on unauthorized disposition:that is,in the situation of unauthorized disposition,defects of the right of disposition do not affect the effectiveness of the contract,whether or not the contract takes effect depends on the conditions under which the contract becomes effective.In the case of unauthorized disposition of others' property,when the contract is determined to be valid,it often faces real issues regarding whether the real right alters in the practice.However,the law of real right alteration depends on the model of real right alteration adopted by the legislation.At present,China adopts creditor formalism as the model of real right alternation in legislation.This model puts forward strict demands on the alteration of real right,three indispensable conditions ought to be met at the same time:owning the right of disposition,effective consensus on creditor's rights,publicity.In the extended section,this paper puts forward some suggestions on improving the system of unauthorized disposition.It suggests that unauthorized disposition oughts to be clearly defined through legislation and the legal consequences of unauthorized disposition under different circumstances ought to be distinguished.With the deepening of theoretical research on unauthorized disposition,some scholars suggest to draw lessons from the theory of property rights in Germany to improve the shortcomings of China's real right theory.I agree with the view that China can boldly learn from the Abstract Nature Theory in Germany,and should adopt creditor formalism as the model of real right alternation in legislation to better maintain the transaction security.Finally,this paper argues that the shortcoming of the current registration system is also one of the reasons that lead to the increasing disputes of unauthorized disposition of real estate in reality.Therefore,this paper thoroughly analyzes the existing problems of real estate registration system and then puts forward some suggestions to improve the system.