Determination Of Bona Fide In The System Of Bona Fide Acquisition

The bona fide acquisition system has always been a hot spot in the property rights law,and it has been generally valued because it involves changes in property rights.In modern society,real estate and land have extremely high value,and as a necessity of life,real estate trading is also related to the property interests of the entire family.Therefore,in the system of bona fide acquisition,the bona fide determination of real estate is more practical.It's conducive to promote the establishment of a safe,efficient and stable real estate transaction order in China if we give full play to the benefit balance of the system of bona fide acquisition.Among the elements of the bona fide acquisition system,it's the core to determine the bona fide of the assignee,but the meaning of bona fide haven't been stipulated clearly by our country's laws and judicial interpretations,which has caused confusion in judicial practice.In view of this,we should find the source of bona fide and examine the development.Based on the multi-structural design and chaotic registration status of the real estate registration system in China,the assignee 's duty of care is clarified.Starting with the degree of attention of the assignee's duty of care,and then determine the situation of gross negligence.Then comprehensively consider other influencing factors,including the time point of the determination of bona fide and the distribution of burden of proof,and finally it can be relatively complete to determine the bona fide of the real estate acquisition system in bona fide.In the first part of the article,the author examines and compares bona fide.Starting from the relevant provisions of Roman law,through the comparison of vertical and horizontal directions,the origin and development process of bona fide were traced,and it was found that the broad sense of bona fide includes two meanings: one is more abstract,biased towards moral requirements,and finally stipulated by German law as the principle of integrity.The other is more specific,and is a subjective perception,often involving specific changes in rights,which continue to be bona fide in today's legal system.The theory of bona fide can be divided into two levels.The first level is positive bona fide and negative bona fide,the second level of classification is introduced from negative bona fide,that is,subjective bona fide and objective bona fide.These theories are centered on subjectivism and supplemented by objectivism.Finally,it provides a reference method for determining the meaning of bona fide through comparing the unauthorized agency system in China's civil law,that is,the connotation of bona fide in China's bona fide acquisition system is finally obtained as " don't know and don't know because of negligence ”,through the interpretation of textual meaning,system interpretation and balance of interests,which lays the foundation for further exploration of bona fide in the following.In the second part of the article,the author clarifies the basis of trust in bona fide determination.First of all,in terms of changes in property rights,our country adopts a hybridism.Different from the formalism of real rights in German law,the change of real rights has no cause,so the applicable space of the bona fide acquisition system is also different and cannot be directly applied.In addition,according to analyzing the current status of registration,we can see that China still has a large gap compared to the German registration system.Further analysis of the presumption and credibility of registration shows that the effectiveness of registration in China is relative,so its reliability is relatively limited,and the assignee should be required to perform certain obligations of care.At the same time,according to comparing with the effect of possession of movable property,it is concluded that there is a difference between the two,and the difference in recognition cannot be ignored just because it has no distinction in legislation.In the third part of the article,the author determines the factors that should be considered when determining the bona fide.Regarding the substantive factors,first of all,there are loopholes in the distinction of negligence in China's theoretical circles,and it is difficult to distinguish the degree of negligence.Through further analysis,it was found that the determination of the gross negligence depends on how to determine "significant",and the specific factors of the gross negligence in practical life are summarized through the judgment document,including the identity relationship between the parties,the identity background of the transferee,and the real estate situation,trading habits,trading environment and place,etc.Secondly,if we want to explore the judgment of the duty of care,based on the more objective standard of duty,we should flexibly judge whether the assignee should conduct inspections and investigations,because the definition of gross negligence is essentially the identification of the assignee 's duty of care.Regarding the procedural aspects,first of all,it is the determination of the timing of the system of bona fide acquisition of real estate in bona fide.After comprehensive analysis of the multiple views,this article abandoned the "registration theory" and adopted the "application theory" viewpoint,which is more conducive to Maintain the unity of the bona fide acquisition system.Secondly,it is about who should bear the burden of proof and the unfavorable consequences of proof in the process of determination in bona fide.After combining the presumed validity of registration with the basic principles of the procedural law,we can see that no matter what role the assignee plays in the litigation,it will not affect the distribution of the burden of proof,and the party who claims that it is not good will bear the corresponding burden of proof.