Study On The Rationality Of Duty Of Care In Bona Fide Acquisition Of Immovable Property

The moment the Bona fide acquisition of Immovable Property established,it has been bogged down in endless debates.The Institutional Model of it has drawn a mixed response from academic circles,causing extensive confusion in judicial practice.Bona fide acquisition aims at the question whether the assignee,who places reasonable reliance on real property register,could obtain the real estate.This system involves balancing of interests between the owner of the real estate and the third party acting in good faith.In specific cases,the courts often based the comprehensive recognition of bona fide on other matters outside the registration,which embodies the idea of balance.The reason is that,Land,with great abstract value,is the survival ofpeople.The stability of the land order relates to the protection of people's livelihood,which is thereby related to national stability.In judicatory practice,the judge tends to take comprehensive cognizance of the good faith of the related party according to matters outside the register,in order to protect the relatively vulnerable possessor,which embodies the idea of equalization.According to the dualism of real estateregistrationsystem in our country,and it's chaos application at present period,the Register should not be granted absolute credibility.Therefore,it's of great and practical significance to admit the reasonable duty of care of the assignee.The judicial interpretation of Property law defines the bona fide as “no gross negligence”,this is not only the abstraction of trial practice,but also extensive understanding of Bona fide acquisition of Immovable Property inChina.Chapter One compares the situation of bona fide acquisition of Immovable Property between German and China,including system construction and the institutional environment.Since we learn more from Germany's legislation experience,it's of great significance to clarify ours by tracing back to German,exploring the history of real property register and the system environment based on the theory of juristic act of real right.In Article 106 in the Property Law,legislator made a unified regulation about bona fide acquisition of both immovable and movable Property,which causes extensive and vigorous dispute.This unified application of bona fide made the credibility of the register become the focus of the debate.In Chapter two,wefirstly clarify the connotation of bona fide,and limit its application to the case where the register is wrong.Secondly,we elaborate the rationality of “no gross negligence” standard in bona fide acquisition of Immovable Property,and make "duty of care" as benchmarks against which the assignee's gross negligence should be judged,which consist the objective judgment criteria of gross negligence.Chapter three is the hard core of the whole passage,focusing on the rationality of "duty of care".The legal basis of the "duty of care" course is explored between the accountability of the fake right appearance and the rationality of the trust protection.By viewing the right appearance of possession from the legislative and practical level in our country,we should get rid of blind trust in registration.Registration is not the only way ofpublicity,the publicity effect of possession in the field of real estate should also be recognized.Respect both the property interests and the survival interests of civil subjects in possession of real estate.At the same time,it is necessary to strictly limit the scope of the duty of care,with the blind expansion of this obligation,the assignee's transaction burdenwill increase,thus affecting transaction efficiency.In the last chapter of the article,we list,from the perspective of flexibility,the factors that influence the determination of gross negligenceto help facilitate the trial practice,ultimately achieving case justice.In addition,through the comparison of theforeign laws,we can learn from them the theory and practice experience.By possession,special relationship between the parties,prices,field visits,trading venues and the environment,trading hours,transaction procedures and other relevant factors,we are able to determine whether the assignee is of gross negligence.The corresponding duty of care can be summarized as the assignee's caution of the price,the obligation of investigation and inquiry and so on.But the most effective and appropriate way of identification isto consider all specific circumstances in a single case.When inapplication,the various factors should be considered in a comprehensive manner,and we should be vigilant about values monism and flexiblyidentify the assignee's bona fide.