A Typological Study Of Changes In Property Rights Caused By Legal Documents

Based on the legal system of our country,this paper takes "the type of legal documents that lead to the change of real rights" as the starting point,and deeply analyzes the relevant problems of "the system of legal documents leading to the change of real rights" established in Article 28 of the real rights law,in order to clarify the internal mechanism of "the provisions of legal documents leading to the change of real rights",and on this basis,reasonably limit and type the changes of real rights Legal instruments.It provides guidance on how to apply Article 28 of property law in judicial practice.In addition to the introduction and conclusion,this paper is divided into four parts,which are briefly stated as follows.In the first part,it explains the theory of academic circles as the systematic deficiency of "internal mechanism" and makes a preliminary analysis on how to overcome it.On the explanation of the lack of "systematic" theory in the academic circle,this paper divides the academic theory into two categories: one is the legal document which is not based on the nature of "the system of change of real right caused by legal document" and is interpreted from an isolated position,so it is doomed that it cannot touch the nature of "the system of change of real right caused by legal document" and can not be classified into legal documents which cause change of real right;the other is the legal document which is not based on the nature of "the system of change of real right caused by legal document" One kind takes "the formation judgment theory" as the internal mechanism of "the legal document causes the real right change system".The theory of formation judgment,which takes both procedure and entity into account,is reasonable to a certain extent.However,because it comes from Germany,it is faced with a theoretical dilemma under the legal system of our country as the internal mechanism of the system of change of real right caused by legal documents,which can not provide a comprehensive theoretical basis for the regulation of change of real right caused by legal documents.The two kinds of theories have the malpractice that do not agree with the legal system.On the analysis of "preliminary overcoming",this paper holds that it isnecessary to reinterpret the "provisions on the change of property rights caused by legal documents" to establish the "internal mechanism" that fits in with the legal system of our country,so as to overcome the defects of the "systematic" deficiency of the above-mentioned academic theories,and initially determine the plan as the first to explore the "normative intention";secondly,draw out the "normative intention" based on the "normative intention" As the standard and direction to explore the "internal mechanism",the benchmark principle chooses the concept with the "typological" function as the standard to establish the "internal mechanism" in line with China's legal system.The second part reconstructs the "internal mechanism" in line with the legal system of our country in order to overcome the shortcomings of the theoretical system.In this part,according to the established solution,firstly,this paper explores the "normative intention" of the provisions on the change of real rights caused by legal documents,and holds that the "normative intention" is to make full use of the effect of the right of formation and avoid the unreasonable phenomenon of unbalanced value judgment of legislators,so as to make this arrangement in the system.Then,on the basis of "normative intention" and the clue,the two principles of "coordination of entity and procedure" and "coordination with China's legal system" are established as the standard and guidance direction,and on this basis,the concept of "basis point of internal mechanism" with "typological function" is introduced,and "right of formation" is selected as "basis point of internal mechanism" and other attributes are combined to specify To explore the "internal mechanism" which is consistent with the legal system of our country;the "internal mechanism" which is finally explored is briefly summarized as "the combination of the right of formation that can lead to the change of real right and the dispute settlement behavior of the dispute settlement organization can lead to the legal document that can lead to the change of real right".The third part uses the internal mechanism with the right of formation as the core to type the legal documents that lead to the change of real rights.In this part,the author chooses the right of formation as the basis of "internal mechanism" to explore the legal document type.This paper analyzes the situation of the change of real right caused by the judgment and ruling based onthe "right to form real right","right to form creditor's right" and "right to form in procedural law".The judgment and ruling based on the right to form real right can lead to the change of real right.The judgment and adjudication based on the right of formation of creditor's rights can lead to the change of real rights when the mode of change of real rights under the legal system of our country satisfies the legal relationship of creditor's rights as the reason of the change of real rights.The situation that the legal documents based on the right of formation in the procedural law lead to the change of real right is limited to the legal documents generated after the change of "the legal documents leading to the change of real right";the retrial action is based on the trial supervision power of the court and the inspection and supervision power of the procuratorate,but because its essence is to try the case again,only the procedure has changed The substantive legal basis has not changed,and the legal documents that lead to the change of real right must also follow the requirements of "internal mechanism".The fourth part makes a further analysis of the situation that the spillover of the legal document "the internal mechanism with the right of formation as the core" leads to the change of the real right.In this part,this paper does not deny that the legal document breaking through the "internal mechanism" can lead to the change of real right in a "one size fits all" way,but to see whether the breakthrough of the "internal mechanism" is justified.If there is a justified reason,it is recognized that it can lead to the change of real right,otherwise it is not.Based on the special law and policy in the field of enforcement,this paper holds that the auction and the ruling of paying debts with property can lead to the change of real right.In the field of criminal judgment,in order to implement the standard of "priority of civil liability" established by legislators,this paper agrees that the judgment based on special confiscation can lead to the change of real right,and does not agree that the judgment based on general confiscation can lead to the change of real right.There is no proper reason for the mediation statement to lead to the change of real right,and the recognition that it can lead to the change of real right reverses the system of change of real right established by the property law.In addition,it is easy to induce moral hazard and provide the institutional basis for the parties to maliciously collude todamage the interests of others.Therefore,this paper does not agree that the mediation document can lead to the change of real right.The function of administrative judgment is to determine whether the specific administrative act is legal or not,which will not lead to the change of real right.