【作者】 王刚；

【导师】 蔡立东；

【作者基本信息】 吉林大学 ， 法律， 2005， 硕士

【摘要】 关于善意取得制度,各国的立法态度不一,尤其是对于不动产善意取得制度的确立更是聚讼纷纭。本文首先从善意取得制度的产生、发展历程,结合各法域对不动产登记效力的不同规定探寻其制度价值。第二部分是从我国确立不动产善意取得制度的应然性角度分析的。从现行立法规定来看,我国未明文规定善意取得制度,但是不动产登记具有公信力,若干民事特别法及司法实践体现出了对不动产善意取得的认许态度。接着,文章对否定不动产善意取得制度的观点进行了评析。第三部分提出了不动产善意取得制度的具体构成要件及法律效果,其中阐述了与动产善意取得制度的区别。最后结合分析《中华人民共和国物权法(草案)》对不动产善意取得的规定,提出不动产善意取得不须以转让合同有效为要件的观点,从而提出了我国确定不动产善意取得制度的具体构想,以期使不动产善意取得制度的价值更加充分地体现出来。更多还原

【Abstract】 In the modern society, economy is highly developed. The bona fide acquisition regulation is only adapted to its development but also it is one of the most important basic regulations in the civil law. It relates to choice between protection of ownership and trade security. The one who occupies property does not have right to transfer it. If he transfers it to the third party who is innocent, then this innocent purchaser obtains the ownership or other real rights right away according to the law. This is what the bona fide acquisition means. According to this regulation, the innocent purchaser will not lose the property that gets from ones who do not have right to transfer it. So it is of great importance to ensure trade security. Most countries agree with the bona fide acquisition of chattel. But there are different ideas if the bona fide acquisition should be adapted to real estate because real estate has great effect on people’s life. The regulation on it is an indispensable part of real right. The bona fide acquisition of real estate relates to choice of systems is one of the important titles in the draft of the civil code. In this article, I will expound problems upon the bona fide acquisition of real estate and hope it will be of use.There are four parts in this article. The first part is analysis of law-making system on the bona fide acquisition of real estate overseas. The bona fide acquisition was once only a particular acquisition to be used the chattel. With the economy of a safety request, the bona fide acquisition of chattel that is born and set up as economy is developing and people pay more and more attention to trade security. Molded by the economy life, the bona fide acquisition originated from the principle of Hand wahre Hand in ancient German. The essence of the principle lies in to give the restrict the owner to make track for and well protect the interests of the innocent concessionaire, so it became the real source of the system of the bona fide acquisition. In accordance with this, modern civil law of many countriesestablished the system of the bona fide acquisition in the typical model meaning. The bona fide acquisition was set up to safeguard the innocent purchaser whose interests stand for the trade order. If the innocent third party can not be taken care of, the transaction will be affected greatly. Ideas on the bona fide acquisition of real estate differ when effect of registration varies in different countries. There are three types of the registration. Law of Germany makes the registration have very great effect. Law of France prescribes that the registration of real estate can only confront the third party. In the third form, registration is not necessary but if it is registered freely, it will have the effect of the demonstrative principle. So we can infer that the bona fide acquisition bases on demonstrative principle for the intention of trade security and promptness. So, after study of demonstrative principle of different countries, we know that we should believe that what is registered is valid. There are many scopes of law such as Germany, Switzerland and Taiwanese region of our country that affirm demonstrative principle and recognize the bona fide acquisition of real estate. The laws of British and American protect the interests of the innocent purchaser from the absolute protection of the ownership, but the United States still denies the bona fide acquisition of real estate. The law of British denies obtaining the bona fide acquisition of real estate in principle, but also there exists the exception, allowing applying the bona fide acquisition when the registered land is transferred to the third party and the transferee only needs to undertake the burden which registered in the registry.The second part is to demonstrate that we should adopt the bona fide acquisition of real estate. The bona fide acquisition graduate turns to protect the special interests of the innocent purchaser in the transaction. It stands for economic order. Protection of it surely means protection of economic order. Adoption of the bona fide acquisition of real estate can benefit to the public’s trust in the maintenance real estate, protect demonstration principle, economize the bargain expenses, simplify the legal relations, develop the economic effect of the thing and stabilize the social economic order and so on.The initial purpose of registration lies in to show the right appearance and make the real right legal relation transparent. The purpose of the demonstration principle is to protect the trust benefits of the innocent purchaser, and this kind of trust benefits can encourage the market mechanism. Establishing the system of the bona fide acquisition of real estate is exactly the law value of the demonstration principle. In our country, registration of real estate affects validity of transaction directly. Strictly speaking, there is no clear definition, but we can still infer it from justice and legislation practice.For the further analysis, the article critiques many standpoints that negate setting up the system of the bona fide acquisition of real estate. They do not agree to adopt to establish this system. They think that chattel can be applied to the bona fide acquisition, but real estate can be safeguarded by the demonstration principle. They believe that demonstrate principle can protect real estate. But in fact, there are great deals of facts certificate that not all registration about the situation of real estate are conformed to the true right of real estate in the modern society. As we all know, it is just adequacy that law must reflect the demand of the society and service the life. Therefore, with the demonstrate principle, setting up the bona fide acquisition of real estate is necessary. Professor Wang thinks that real estate trade can also be made of registering wrongly or carelessly omitting, and non-owner may make use of this situation. So from the purpose of protecting trade order, we should allow the innocent purchaser to acquire the ownership of real estate; Seeing from many countries’ lawmaking provisions, most of them admit that real estate also be applied to the system of the bona fide acquisition. Therefore, in the clause of 78th of the draft suggestion on real right of China carries on the provision for the system of the bona fide acquisition of real estate.There are also people who think that because now we do not have a wholesome registration system we should not adopt the bona fide acquisition of real estate. But what makes it not wholesome enough is that a lot of real estate, which should be registered, has not been registered. The bona fide acquisition is not adapted to real estate that is not registered, so insanity of this更多还原