| “Imposture disposal of real estate” is a behavior of personating others' s identity or forging a signature to illegally dispose the real estate which belongs to others instead.During the transaction process,the trading partyshould be in good faith and have already paid reasonable price,and the registration of real estate property should be altered.In this paper we concluded several most representative opinions regarding the effectiveness of the “imposture disposal of real estate”.First of all,the imposture disposing behavior is applicable for the system of “bona fide acquisition”.While there are two different opinions regarding the application scope of “bona fide acquisition” system: one of them consider that imposture disposing behavior is in conformity with the provision 106 of Property Law,and the other one stands for that it's applicable for the regulations of bona fide acquisition of stolen goods.Secondly,the imposture disposing behavior is also applicable for the regulation of “apparent agency”.Thirdly,the imposture disposing behavior is applicable for both of “apparent agency” and “bona fide acquisition” systems.Fourthly,the imposture disposing behavior is a fraudulent act which only caused of the liability for registration agency,but will not leads to the alteration of the property ownership.As a trading party in good faith,he/she believes that the identity of the feason is consist with that of the right holder druing the imposture disposing behavior,which is different with the system of apparent agency.However,both of them protect the reliance interest of the third party.Is it feasible to protect the reliance interest of the third party by using the apparent agency system? And should all the reliance interest of the third party be protected? On the other hand,bona fide acquisition system clearly sacrificed the static security of the rights holder to the dynamic security of the transaction and the reliance interest of the third trading party.The reliance interest also exist in contract party,is it similar to the reliance interest during the bona fide acquisition system? Can we use the bona fide acquisition system to protect the reliance interest of the contract party during an imposture disposing behavior?This paper focuses on the empirical research about using different application theories to solve cases about imposture disposal of real estate during judicial practices.In our country,the referee basis solving cases about imposture disposal of real estate still have not been unified.Most of those cases reference to the provision 106 of Property Law.Firstly the court will try to confirm that whether the acquisition of the property by the trading dealer is in good faith,if yes,the court will choose giving priority to protect the intreasts of the trading party.However,there are also some courts and procuratorates think that the bona fide acquisition system should only be used when the registration of the property is wrong.Some other courts also use apparent agency system to solve this kind of cases.Both of the bona fide acquisition system and the apparent agency system need to consider whether the trading dealer is in good faith or not during the transaction.The standard of juding whether the dealer is in good faith or not in our country is still not unified,and the judgements usually were determined subjectively by the judge,regarding whether the third trading party have already ensured the duty of care.Hence,here we proposed several questions that we thought need to be solved urgently as below.Is it reasonable to sacrifice the original rights holder to the third trading dealer? What is the applicable standards of bona fide acquisition system? How to determin whether the trading dealer was in good faith or not during a transaction? Here in this paper,we collected different trial cases about imposture disposal behavior and accomplished a preliminary study about empirical research,in order to provide some solid data and useful information to help solving these cases in the future. |
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