Theory On The Alteration Of The Real Right Based On The Factual Behavior

General provisions on the changes in real rights resulting from factual acts was made in the article 30 of the Property Law.Since the term "factual behavior" is not defined in the article,there is a big difference in the interpretation of factual behavior between our academic and judicial practice.In summary,the “factual behavior” can be considered as a non-ideographic legitimate act behavior with statutory effect when it is examined from the normative level.Although the effect of factual behavior is statutory,the statutory consequences of factual behavior are not limited to the change of real rights.The factual behavior that can lead to the change of real rights should meet four conditions: the property of factual behavior is a property;the actor has the intention of acting actual consequences on possessed property;the actor has control over the property;and there is possibility of obtaining or eliminating the real right after the factual behavior is achieved.The change of real rights caused by factual behavior shows the legality and publicity non-compulsory of the consequence of property rights change.Therefore,it shows a different view of real right changes caused by legal actions under formal pattern of real right change.The legitimacy basis leading to the change of real rights directly lies in:(1)In the real right changes caused by the factual behavior,if the real right publicity is still adopted as the effective element of the change of real right,when the factual behavior achievement has not yet been registered,there will be occurrence of property without ownership,may resulting in the impairment of the interests of owner with new rights;(2)Respecting for the certainty in the practice;(3)Real concept makes the objectivity of real right.It should be recognized that right holders who have acquired real rights based on factual behavior have obtained the validity of real rights completely before being publicized.The further disposition right of right holders should be restricted,while negative evaluation on the validity of right holders' behavior of disposing immovable property directly without public notice shouldn't be made.For those who obtained theimmovable real rights originally based on factual behavior,the omission of registration can be introduced appropriately.