Research On The Application Of Security Ability For Defects Of Right And Bona Fide Acquisition In The Case Of Unauthorized Action

China's contract law has stipulated,in its Article 51,the pending validity of contract in case of unauthorized disposal of others' property,which has actually excluded the possibility to apply the liability of guarantee for defects of right.However,Interpretation for Legal Problems Applied to the Trial of Dispute Cases of Sales Contract issued in 2012 by Supreme People's Court has changed the provisions specified in Article 51 of contract law concerning the validity of contract in the event of unauthorized disposal to a certain extent,ensuring a space for the application of guarantee for defects of right.Whereas,the buyer,who keeps a good faith,can frequently obtain the complete rights of the subject matter in accordance with the bona fide acquisition system.In such a circumstance,the applications of the system of guarantee for defects of right and bona fide acquisition system would see a concurrence,giving rise to that people cannot make a choice in practices.The system of guarantee for defects of right attaches more importance to protecting the transaction safety and the buyer's interests on the premise that the ownership of the third party would not be damaged.In contrast,the bona fide acquisition system gives the buyer in good faith the absolute safety at the cost of sacrificing the static safety of the ownership.Therefore,it is of great necessity to carry out value analysis and interest balancing for these systems to study how to choose and apply the system of guarantee for defects of right and bona fide acquisition system in the event of concurrence.This article can be divided into three chapters as below:In the first chapter,the relations between unauthorized disposal and guarantee for defects of right were illustrated.Firstly,scope of the unauthorized disposal referred in this article was clarified as the following three circumstances: sell substances belonging to others;co-owner disposes common properties without authorization of other co-owners or pledge properties of others;other encumbrances.Secondly,by comparing unauthorized disposal with guarantee for defects of right,it was found that specific types of these two concepts would overlap with each other to a certain extent.Then,a conclusion was drawn that in cases where transferor has no right to dispose,the transferee could be guaranteed by defects of right.Consequently,the possibility to apply the guarantee for defects of right in China's current laws was analyzed,discovering that the Sales Contract Law stipulated that the buyer could be guaranteed by defects of right in the event of unauthorized disposal.While in case of other burden actions excluding the sales contract,the buyer could not be guaranteed by defects of right.The possibility to achieve the concurrence between guarantee for defects of right and bona fide acquisition in the event of unauthorized disposal was studied in the second part.Firstly,in case of non sales contract,concurrence is not possible because the guarantee for defects of right could not be applied.Secondly,by analyzing the elements comprising these two systems in case of sales contract,it could be found that in cases where the buyer could meet the conditions of bona fide acquisition,concurrence could be achieved between guarantee for defects of right and bona fide acquisition.In addition,specific circumstances where concurrence could not be reached for these two systems were further identified as follows: firstly,the buyer establishes the contract in good faith and accepts the transfer of the object without good faith;secondly,special agreement is entered into by both contract parties to request the seller to assume the liability of guarantee for defects of right for unauthorized disposal;thirdly,the subject matter of transaction is detached property or stolen goods;fourthly,the subject matter is not transferred at a reasonable price;fifthly,the subject matter is not changed in the real right.Owing to that guarantee for defects of right and bona fide acquisition differ with each other in terms of legal consequences and degrees of protection for transferee,applications of these two systems in the event of concurrence were discussed.And the third chapter studied how to select guarantee for defects of right and bona fide acquisition in case of concurrence.Firstly,the orientation of juridical practices in China concerning this issue was investigated through judicial cases,finding that bona fide acquisition was often adopted by courts in China to deal with issues of such kind.Secondly,it came to the following conclusion through analyses from different perspectives: in case of concurrence for guarantee for defects of right and bona fide acquisition,the bona fide acquisition should prevail in principle.If the transferee can give cogent reasons,guarantee for defects of right can be applied exceptionally.The cogent reason provided by the transferee often refers to the circumstances where the buyer could obtain greater benefits through guarantee for defects of right or the buyer could not realize win-win situations with the former right owner.