The Scope Of Civil Effective Judgment Leading To The Change Of Real Right

According to the present system,the civil effective judgment can lead to the change of real right,which is expressly stipulated in Article 28 of the property Law of our country and Article 7 of the interpretation of the Supreme people's Court on some problems of the property Law of the people's Republic of China(1).The purpose of the legislation is to clarify the scope of the legal instrument that can lead to the change of real right without registration and delivery,and the scope of the legal instrument also includes the civil effective judgment.However,Article 28 of the property Law of our country only generalizes the concept of the legal document which leads to the change of the real right from the level of the "legal document",and does not clarify its connotation and extension.Article 7 of the interpretation of the Supreme people's Court on certain issues of the property Law of the people's Republic of China(1)is a supplementary interpretation of the contents of Article 28 of the property Law of the people's Republic of China.Taking "changing the original real right relationship" as the identification basis for the application of Article 28 of the property Law,to a certain extent,it limits the extension of the civil effective adjudication with the effect of the real right change.Furthermore,the effective judgment in the civil field covered by Article 28 of the property Law is clearly defined as the civil entry into force judgment,the civil entry into force decision and the civil conciliation statement.Even so,there are still inadequacies in the provision,so that legal norms can not adapt to complex judicial practice.In order to achieve the purpose of the unity of knowledge and practice,it is still necessary to further explore the legislative intent and seek theoretical support for legal provisions,in order to clarify the types of civil effective adjudication that lead to the change of real right,in order to solve the confusion of local judicial adjudication caused by the fuzziness of legislation.In addition to the introduction,this paper is divided into four parts,a total of nearly 40,000 words.The main contents are as follows:The first part is the present situation of the scope of civil effective adjudication,which leads to the change of real right.This part is divided into two parts: the current legislation and judicial adjudication,with the intention of revealing the current situation of the types of civil effective adjudication with the effect of real right change in our country,and expounds the necessity of clarifying the scope of civil effective adjudication that leads to the change of real right.At the legislative level,taking Article 28 of the property Law of our country as the main line,various departmental provisions and judicial interpretations have been issued in conjunction with it,further stipulating the scope of civil effective adjudication that leads to the change of real right,but there are still many puzzles at the legislative level.At the judicial level,through the classification and analysis of judicial adjudication cases,this paper reveals the current situation of vague application of the law in the current judicial practice of our country.The second part expounds the theoretical basis of the change of real right caused by civil effective adjudication.As an exception to the principle of publicity of real right,the change of real right caused by civil effective judgment can occur directly from registration,delivery and other public elements,but not any civil effective judgment can lead to the change of real right.Combined with the characteristics and nature of the change of real right,the civil effective judgment which only takes the direct change of legal relationship as the content can lead to the change of real right,that is,the civil effective judgment with forming power.Specifically,the civil effective adjudication with formative power includes formative judgment,formative civil decision and formative civil mediation.As far as the formation of judgment is concerned,there is no lack of the theory of public substitution,the theory of maintaining the validity of legal documents,the theory of social truth and the theory of pluralism,and so on,in which the civil effective judgment leads to the change of real right.However,none of the above theories reveals the essential reasons why the judgment can lead to the change of real right from the legal point of view.If we want to analyze this reason,only from the external credibility and internal formative force of the two aspects of the formation of the judgment,in order to form the judgment leading to the change of real right to clarify the theoretical road.As far as the civil decision is concerned,the effect of the real right change of the civil decision is based on its own nature and the direct provisions of the national law;as far as the civil mediation statement is concerned,the completion of the civil mediation statement is based on the consent of the parties.For the result of the recognition of the mediation content of the parties,the nature of the public power of the civil mediation statement and the formative nature of the formative civil mediation statement are the legal basis for the change of the real right.The third part is the solution to the confusion of the scope of the civil effective judgment which leads to the change of the real right.This part mainly analyzes the effect of the change of real right which forms the judgment.In view of the controversial civil effective judgment which can lead to the change of real right in practice,the author believes that,The formation judgment which can lead to the change of real right mainly includes revoking the contract judgment of real right change,revoking the judgment of debtor's fraudulent creditor's rights,the judgment of common property division,the revocation of marriage judgment involving the division of marital property,and the division of estate.A judgment and a non-contentious judgment finding that there is no owner's property,However,the confirmation of the invalidity of the contract,the confirmation of the judgment of the real right,the rescission of the contract of the real right change according to the rules of change of circumstances,and the divorce judgment involving the division of the husband and wife's property can not directly lead to the change of the real right.The fourth part,the settlement of other civil effective adjudication disputes that lead to the change of real right.This part mainly expounds from two aspects: formative civil decision and formative civil mediation.In view of the controversial scope of civil effective adjudication with the effect of real right change in practice,the author believes that only auction transaction ruling,property for debt ruling and revocation of arbitral award ruling can lead to the change of real right.In view of the scope of the civil mediation statement with the effect of the change of real right,which is disputed in practice,the author believes that it is limited to the division of the common mediation statement and the revocation of the civil mediation statement of the contract related to the change of real right.The confirmatory mediation statement can not lead to the change of real right.