The Applicability Of Constitutum Possesorium In Bona Fide Acquisition

The Constitutum Possesorium and Bona Fide Acquisition are the products of the boosted Chinese economic,with former emphasis on the efficiency of transaction and the later emphasized the security of transaction.Due to lack of publicity,whether Constitutum Posesorium applies to Bona Fide Acquisition is still an unsolved puzzle around the world.Meanwhile,our legislation is silent to such question yet the academia debates seem to be endless.In practice,it also result in some serious problems,i.e.avoidance or biased judicial decisions.The Supreme People's Court of PRC issued Interpretation of the Supreme People's Court on Several Issues Concerning the Application of the Property Law of the People's Republic of China(I)on 23 Feb 2016(hereafter "the Interpretation"),which was another huge interpretation to the PRC Property Law with its Extensive content including the registration of real properties,priority purchase rights of co-owners and the bona fide acquisition.With the economic explosion of our great country,the market is in urgent need of guaranteeing transaction environment,reducing transaction costs and improving the transaction efficiency.As a matter of fact,the only unavoidable question for the theorists and practical fields is to balance the "public value" showed out from Bona Fide Acquisition and the "individual value" came out from the Constitutum Possesorium.The Constitutum Possesorium,as one of the way of conceptual delivery,played an important role in the development of transactions for the modern economic world.However,such delivery was once considered a departure from the principle of publicity to the traditional property law,and its value was questioned.The existence of Bona Fide Acquisition itself is a logical result of recognition of publicity in law.Moreover,The Bona Fide Acquisition is the system established by legislation of modern civil law to protect the security and convenience of market transactions.The main obstacles of the reason that Constitutum Possesorium does not apply Bona Fide Acquisition are,firstly,due to that Constitutum Possesorium is a way of delivery of property that lacks publicity,and secondly,that such issue raised a competition for the weight of choosing the interests and values between the rights of original owner and interests of the transferee caused in the transaction.The problem arises that whether Constitutum Possesorium of bona fide assignee excessively infringe the original owner of such property.When on the combination of Constitutum Possesorium's lack of publicity and Bona Fide Acquisition's emphasis of the appearance of ownership,the choice between these two contradictory systems which were born in the economic development,is a topic of debate world-wide.Discussion of this thesis starts from the internal conflicts of Constitutum Possesorium and Bona Fide Acquisition,then refer to the provisions of national legislation and absorbing the theory of various experts,and eventually come to an conclusion that the Constitutum Possesorium applies to Bona Fide Acquisition and make no difference to the other ways of delivery.The thesis takes the perspective of the object of publicity and the lack of publicity to explain the so-called "conceptual delivery" lack of publicity is indeed biased.The object of publicity shall be the status rather than the moment of change of ownership of such property,and delivery is an instant move that the real delivery does not meet the requirements of publicity,let along the conceptual delivery as it does not have the character representing the status of property.Another thing is,from the aspect of the value of Bona Fide Acquisition,the thesis elaborates on the theoretical basis of Bona Fide Acquisition for the credibility of possession and protection of transaction security,where the credibility reflected in the assignor,rather than the assignee.When the original owner and the bona-fide third party suffered loss for the conduct of the person without ownership,the law gives priority to the safety of the transaction and assigns more responsibility and consequences to the original owner to thereby protect the bona-fide third party.The thesis then take the angle from the risk of the market economy and other principles to further weigh the interests and responsibilities of the original owner and the bona-fide third party.Finally,through the hypothesis to prove the consequences and effects of not applying Bona Fide Acquisition and further concludes that the law shall not be used to avoid multiple improper transfers by applying Constitutum Possesorium to Bona Fide Acquisition.What is more,In the Constitutum Possesorium as a means of delivery increasingly frequent today,denial of applying Constitutum Possesorium to Bona Fide Acquisition will bring a series of time,money,and energy consumption.In the long run,the way of applying Constitutum Possesorium will be abandoned,and the law for Constitutum Possesorium will also become void,which is clearly contrary to the original intention of legislation,and will cause a lot of waste of resources,which is not conducive to the overall interest of social benefits.Therefore,it is an important combination of theory and reality,and it is an optimal choice to avoid disadvantages to affirm that Constitutum Possesorium applies to Bona Fide Acquisition.With the development of China's economy,I earnestly hope that the academic community can attach importance to the combination of the two systems with the admonitions to the legislature through the judicial interpretations to confirm that the Constitutum Possesorium's applying in Bona Fide Acquisition,so that the dispute cases caused by such issue can be settled and the transactions of the society can be promoted.Additionally,in order to avoid abuse of such systems,the constituent elements shall be considered carefully and the application of Constitutum Possesorium to Bona Fide Acquisition shall be clearly defined and restricted in a reasonable way to further reach the dynamic balance between protecting the interests of the original owner and the safety of transactions in the market.