On The Identification Standard Of "Gross Negligence" In House Bona Fide Acquisition

The purpose of bona fide acquisition system is to protect the security of transactions,that is to protect the trust interests of the parties involved in bona fide transactions.However,the existing legislation is not clear about the identification standard of "gross negligence" in bona fide acquisition of housing,and it is very important to judge whether the transferee can acquire the subject house bona fide acquisition.In the property right section of the civil code of China,the system of bona fide acquisition has been clearly applied to the field of movable property and real estate transactions.Although the system basis and internal logic of the two are the same,the credibility of real estate registration is far stronger than that of movable property possession,so the identification standard of "gross negligence" in bona fide acquisition of housing should be re distinguished.In addition,"gross negligence"belongs to the subjective state of mind of the parties,so it is difficult for legislation to formulate operable legal provisions.However,the judicial organ can only objectively express the subjective state of mind of presumption through the parties.On the one hand,it is easy to confuse the adjacent concepts and lead to errors in the application of law.On the other hand,it is difficult for various courts to unify the determination standards,and there are many different judgments in the same case,Therefore,the judgment method of "gross negligence" should be made clear,and the reference elements of "gross negligence" should be determined to unify the judgment standard.Combined with a large number of cases,this paper attempts to build a certain operability of "gross negligence" identification methods and standards.In addition to the introduction and the final conclusion of the first part,it includes the following three parts:in the first part,through the analysis of the basic theory of right appearance and trust protection,it is proposed that the core of determining whether the assignee has "gross negligence" is to judge whether the party concerned has fulfilled the reasonable duty of intentional investigation,This paper puts forward the viewpoint of dividing the degree of attention and investigation obligation of the transferee according to the mode of property right publicity,and reconstructs the standard of investigation attention obligation of the house bona fide transferee under the current system by combining with the existing law and through the demonstration method of lifting the weight to show the light;In the second part,through the analysis of the confusion between "gross negligence" and "malice" in the presumption of the subjective mentality of the transferee in the acquisition of house in good faith,it is concluded that the reason for the confusion is that the way of identifying "gross negligence" needs to be improved.Therefore,based on the analysis of the causes of confusion in practice,this part combines with the existing theory of identifying "gross negligence",It puts forward the subjective and objective method to judge whether there is "gross negligence" subjectively;In the third part,through the analysis of different reference elements in the cases of Beijing courts at all levels in recent ten years to determine whether there is "gross negligence" of the assignee,the objective reference elements used to determine whether there is "gross negligence" of the assignee in good faith acquisition of housing are summarized,As well as the possible cases of acquisition of housing right of residence in the future,this paper summarizes the corresponding review points of "gross negligence".