Research On The Bona Fide Elements In The Real Estate Bona Fide Acquisition System Compared With German Law

All along,A general stipulation was applied in the legislation of our country for dealing with the real estate bona fide acquisition system affairs.Although the real estate bona fide acquisition system has been identified with the appearance of the“Property Law”,None substantial change can be seen in the general stipulation.More,details mentioned above leads to a long-term phenomenon in which judicial standards are not uniform in the real estate bona fide acquisition,and judicial practice lacks more comprehensive understanding about the system.The newly introduced“Interpretation One of Property Law Judicial” provides a relatively specific standard for the estimating of the real estate bona fide acquisition.A complete rule-system will be established for the real estate bona fide acquisition system under its guidance as expected.According to the academic theory,the bona fide elements has been take as the core elements of the real estate bona fide acquisition,and thus was already derived in the transaction,the third party obtains the right by ruling out the real right interference brought by original owner.China's legislation given the real right takes Germany's as reference a lot,the legislation of German law is based on the abstract theory of real right behavior and dualism thought of distinguishing between movable property and real estate,and then make the objective institutional dependence confirmed and the bona fide elements and the duty of care separated.By comparingChina 's real estate bona fide acquisition system with German's law,we can achieve a deepgoing the understanding of China's real estate bona fide acquisition system.Combining the “Property Law” and “Property Law Judicial Interpretation One” and defining the connotation of bona fide,this article focus on the discussion of domestic and foreign theory about bona fide elements in the real estate bona fide acquisition and advanced legislative technology,and making an in-depth understanding about the debate on China's real estate bona fide acquisition,especially the judicial standards of bona fide elements.Four chapters are displayed in this paper:In the first chapter,the question was forwarded and the author organized an expounding description of,the theoretical basis of the real estate bona fide acquisition system,and puts forward the problem of the lacking of judgment-standard about bona fide elements of the real estate bona fide acquisition system in the judicial level of our country.The author defines the connotation of “bona fide”,compares the objective bona fide and the subjective bona fade-in the second chapter,and puts forward an analyze on the rationality of adopting the former bona fide analysis.On the basis of drawing on the German civil law,it is suggested that the connotation of bona fide should been defined as the assignee “do not know or should not know” the error recorded in register.In the third chapter,the author points out China's judgment standard of bona fide elements should contain four points: “reasonable price”.Judgment of the time about bona fide happening,the duty of care of the assignee,and the distribution of burden of proof in bona fide.In the last chapter,the judgment standard of bona fide elements was summarized and the author puts forward some helpful suggestions for improvement.