The Legal Application Of False Disposal Of Real Estate

The basic types of false disposal case is :someone else who is the real estate real right,the impostor deliberately created the real estate ownership rights of the relative person makes the appearance,and the signing of a real to be impostors all production for the subject matter of the contract.Then the impostor through forged identity cards,stolen property card etc.cheat behavior of the real estate registration organ,completed the registration and the relative person.The practice of this kind of case in judicial judgment standards,legal scholars have not punishment for false each one sticks to his own view,the main real estate dispute behavior problems in the law application is in the judgment on the choice of path,focus on the application of the bona fide acquisition system or application of apparent agency system.The system has to think about the issue that false dispose of immovable property directly applicable the bona fide acquisition system,at the same time through goodwill,in this view,these measures should be recognized as legal risk behavior between celebrity and the relative person,and can not be identified as false legal action between the people and the relative person.The second view is endorsed by the apparent agency to examine the validity,the shortcoming is through the negation of the bona fide acquisition system used in such cases,no false cases can dispose of immovable property for apparent reason of agency system from positive analysis;two is "through the application of the apparent agency system" the equivalent of "constitute agency by estoppel,so that the" Application of the apparent agency system is effective for unauthorized agency is invalid "judgment,in this view in the".Application of the apparent agency refers only by considering whether the agency elements to judge the case of creditor's rights the contract is valid or not.The German civil law basic theory of property law theory of juristic act of real right,the principle of distinction is one of the most important parts,refers to the burden of behavior and action has its own establishment and effective way,is two separate legal facts.Civil law scholars in China in the last century,the beginning of 80 s on whether to follow the principle of distinction the debate,China "property law > fifteenth formally establishes the legal principle of distinction,the provisions for real estate provisions,explain the distinction of effectiveness of contract effect and registration.We are talking about the pattern of property right change is mainly caused by the change of real right law,because the most important cause in the legal fact of real right change in legal behavior,change theory model of real right countries in the legislation of real right selection is of great importance to the whole law law definition and practical operation.Civil law mainly has three kinds of different theory and legislation mode based on legal act of real right change: on regulating the pattern of property right change,the existing property law works especially textbooks will usually be divided into three types: bond intentionalism,formalism,formalism of property.Creditor's rights refers to the real right change only the parties to make the sale,gift etc.means that can take effect,effective condition of delivery and registration is not the real right change.The creditor's rights formalism,is refers to the real right by legal actions and changes in debt rights Italy,also must perform the registration or delivery,before it can take effect.The property formalism,is refers to the real right for real right behavior and change,need the meaning of the real right change is independent of the agreement of debt,and to fulfill the registration or delivery,the agreement of debt is established,effective does not affect the legal effect of real right change.The mode of creditor's rights,otherwise does not require the agreement of property right or real right behavior,nor the registration requirement for its force to deliver or.This mode of real right by legal actions and changes,only by the parties entered into a contract,do not need demonstrative way.Because of the change of real right way only the need for a debt agreement will have the effect of real right change,although a contributes to trade,simplify transaction procedures,promote transaction velocity,but this mode of transaction great security risks,once the agreement of debt defects,regardless of physical delivery or not registered or not,the property will occur changes to the interests of the seller is extremely unfavorable,so only a few countries in this mode to use,I do not agree with the burden of behavior change.At the same time effective property instead of two Should be distinguished from each other.The basic rules for the change of real right due to legal action are "consensus" and "publicity".In false punishment others real estate case,relates only to the general conditions,such cases by the impostor(b)to be impostors(a)the name and the relative person(c)of the housing sales contracts signed,the contract is listed on the parties A and B contract because both parties.Each other said the same meaning set up.Wang Zejian: obligation principle,Peking University press,March 2013 second edition,page 198 th.Simple explanation is,on the formation of contract,"meaning that the two sides agreed" refers to the appearance of the same,it need to refer to social trading habits,regardless of the true inner meaning and appearance the meaning is the same.In the False dispose cases,people are only willing to be relative with the impostor contract,there is no effect of a contract between the impostor and may contract relative.This contract is in false Between the contract and relative entry into force depends on the meaning of being at celebrity said that ratification is the impostor afterwards.If the impostor was ratified,is a contract,property right,this is no doubt.But in most cases,is the impostor will not ratify this legal act.A contract is not established.The analogy is a way to fill open loopholes in the law,are important factors for the adoption of the system of legal norms of analogy depends on pending cases and will be in pursuit of analogy or evaluation on both meaning and the same with the same or similar in extent.It should be the case should the analogy of unauthorized agency system,refers to the bona fide acquisition system to analyze the factors that determine the contract,mainly from the apparent agency specification itself by analogy,the two have the same right appearance,the two conflicts of interest to the same analysis.Apparent agency elements in whether the agent has fault,is a controversial issue,but also on the analogy of apparent agency false estate case need to think about.I support the compromise elements,namely estoppel is not my fault for elements,but to my table see the appearance of the right has certain relevance as a judgement of whether a apparent agency standard.Whether in the law requires the existence of real right behavior,namely our country should uphold what property change rules are not solved in this paper,the false estate case,discuss respectively placed on the premise of juristic act of real right and the real right behavior premise: if to admit the existence of real right behavior alone,visible in false analysis dispose of immovable property in the case,with the fate of validity of a contract of claim of property right with the contract,and the bona fide acquisition system is applicable to the contract is invalid,the effective condition of contract of real right here,and useless.If you do not recognize the existence of real right behavior alone,is the impostor refuse to ratify,claim the contract is invalid,it will affect the change of real right,we should consider the change of real right "by" and "no result".I believe that we should be more essential and flexible view between contract and real right change,and should not be bound by the logical conclusion.And,in the present situation of legislation and judicature in China,due to general,no reason for the special is more appropriate.So,in the real right behavior alone exists and the cause of change of real right,when the impostor refused to make claims to ratification the contract is not established,the property is not changed,here also need not consider the system of bona fide acquisition.