The Research On The Non-causation Principle Of Juristic Acts Of Real Rights

The core of juristic acts of real rights theory——non-causasion principle plays an important role in the transfer safety.this princeple is the central focus on controversy.If we don't admit the juristic acts of real rights theory,we needn't admit non-causasion principle.though we admit the juristic acts of real rights theory,there are two mode including causual or non-causasion.This article involve several parts hereinafter:The first part introduce the juristic acts of real rights theory,non-causasion principle build on the foundation of it,We should only admit the theory,non-causation principle have its logical precondition.The second part involve the controversy of the juristic acts of real rights theory,The author try to overview the dispute of scholar,And clarify my viewpoint.The third part is the summarize of our country's law system,The author clarifies the attitude on the juristic acts of real rights theory in the judicial interpretation of property law and legislation before,The author also tries to interpret the provision of law in our country,to make the provision of law accommodate the juristic acts of real rights theory and non-causasion principle.The first chapter is the overview on the origin and definition of the juristic acts of real rights theory.First we state the history of the juristic acts of real rights theory briefly.and then the author interpretes the definition of the theory,in order to make the readers understand the logical precondition of the theory.Separation of Effect of Bonds from Effect of Matter of Law.The principle of formalism emphasizes the need for property rights to be publicized,movable property needs to be delivered,and real property needs to be registered.The abstract principle refers to the validity of the other party is not affected when the debt act is invalid or the property right is invalid.Including external abstraction and internal abstraction.External abstraction emphasizes that the effect of debt-act does not affect each other's effectiveness.The internal abstraction emphasizes that the elements of debt-act and property-right act are independent of each other and independently judge their effectiveness.The second chapter is about the dispute of the theory.This chapter contains two parts:The first parts is the controversy on the theory,analyzing on the advantage and disadvantage of non-real time transaction and Willenstheorie.Opposition mainly lies in the theory of real rights behavior from the reality of life,in favor of the main view is that the theory of property rights makes the line between debt law and property law more clearly.The second part is about the dispute on non-causation principal,including the comparing on protection of transfer safety,bona fide acquisition and public notice and public faith principle and non-causation principal.As for the protection of transaction security,the abstraction principle merely gives the original owner the right of claim of unjust enrichment,which is obviously not protected to the original right holder.Therefore,the German civil law proposes the conditions of association,the same defect and the act of one The lack of principle of no cause.The system of good faith acquisition and the principle of non-cause exist epitaxial overlap,but the extension of the principle of no cause is greater than the system of good faith acquisition,and the principle of non-cause stemming from the concept of self-government of private law is more persuasive.The public principle of public trust is the necessary logical conclusion derived from the principle of non-cause.Therefore,the principle of no cause is indispensable.The third part is the legislation about the change of property right in our country,involving the Uncertain Effectiveness Contract in contract law,and the principle of distinction in property law.and the 3rd provision in the judicial interpretation of sales contract,the prevent of bona fide acquisition in the judicial interpretation of property law.The stipulation in Article 51 of the Contract Law that the pending determination of the right to dispose of a contract is not the same as the other legislation in our country.Article 3 of Judicial Interpretation of Sales and Purchase Agreement amends the above provisions.Articles 15 and 23 of the Property Law clarify the distinction between the effect of changes in real rights and the effectiveness of sales and purchase contracts.Whether this provision is an expression of abstract principles will be discussed in detail later.It is worth mentioning that the "Property Judicial Interpretation of Property Law",which entered into force in 2016,stipulates whether bona fide acquisitions are made in the case of invalid or revocable contracts.The theoretical premise of this provision is that the mode of property change is The formalism of creditor's rights,the factor model under the formalism of real right,or the non-cause mode under the formalism of real right.The author also tries to explain the provision of law,involving the comparative law,in order to construction non-causation principal on the foundation of our country.The author invokes the similar provisions of the German Civil Code and holds that the stipulation in Article 51 of the Contract Law should be real right contract rather than debt contract and the above provisions should be stipulated in the General Provisions as it is about the act of disposition The general provisions of the right to be determined.The provisions of Articles 15 and 23 of the Property Law also can not be regarded as the denial of the principle of non-cause,which can be abstracted from registration or delivery."Article 21 of the Judicial Interpretation of Real Right Law" In addition to the violation of public order and morality in Article 21,in other cases,the invalidation or repeal of the contract of sale and the obstruction of goodwill acquisition are in fact the inevitable conclusion under the principle of non-cause.In the end,the author summarize the reason above,and raise my own viewpoint,state that our country should admit the non-reason principle.In fact,there are many places in our legislation that have the shadow of German civil law.However,the reason why German civil law explicitly recognizes that the theory of real rights and property rights has no causality and our country does not recognize it is because Chinese legislators made reference to the provisions of German civil law,But did not introduce the normative reason behind the German civil law norms,which led to the ambiguous situation of our country's attitude towards the theory of property rights.