On the Construction of the Third Party Protection System in Property Law

Abstract: the protection of the third party is an important category in the property law, and the importance of attaching importance to it is self-evident. However, it really needs the joint efforts of the legal circles to build a perfect third-party protection system in the Civil Code and the Property Law. When comparing and choosing various theories and system categories about the protection of the third party, the author abandons the theory of non-causation of real right act in German law, and constructs the protection system of the third party in China's real right law on the basis of the principle of publicity of real right and the system of bona fide acquisition.

Keywords: the principle of publicity and public trust, the theory of the non-cause of the third party's bona fide acquisition of the system property right behavior

First, the third party protection system overview and theoretical disputes

The third-party protection system in the property law is the basic system in the property law, but before Mr. Sun formally proposed to face up to the third-party protection system in the property law, there was little discussion on the third-party protection system in China's legal circles. The reason why the property law gives special protection to the third party is that the interests of the third party are the embodiment of the trading order of the market economy, and the whole normal order of the market is connected by a third party. (1) If the interests of the third party are not guaranteed, the transaction security of society will not be effectively maintained, and a good and effective transaction order will not be formed reasonably. The third party involved in the third party protection system in property law generally refers to all the people who are not involved in the legal relationship of the parties, but have a close interest in the result of the legal relationship of the parties. The existence of the third party complicates the legal relationship and leads to the conflict of interests between the parties and the third party in the change of property rights. Because according to the principle of "one thing, one right" in the Property Law, it is impossible for the third party and the party to enjoy the property right at the same time in the change of property right, therefore, how to balance the interests between the third party and the party, so that the transaction can be completed safely and quickly and the interests can be maximized is a practical problem in front of the Property Law, and protecting the third party is one of the outstanding problems.

It was the early Germanic law that first discovered and began to pay attention to protecting the third party. In this law, the rule that "the previous transaction has fewer defects than the subsequent transaction" has been established. Even if the previous transaction is flawed, when the material benefits are transferred to a third party, the third party's transaction is regarded as the latter. If the right is flawless, it will be strictly protected by law and no one can deprive it. This is the famous principle of "protecting hands with hands". This practice is extremely beneficial to the protection of the third party. It is from the beginning of "protecting hands with hands" that countries begin to pay attention to the protection of the third party to varying degrees, and there are great differences in the basic legal choice of the protection of the third party. The rules involved mainly include the system of bona fide acquisition, the principle of non-causation of real right act, the principle of publicity and public trust, etc. The choice of these rules has great differences in theoretical circles. The main points are as follows:

(1) The system of bona fide acquisition replaces the theory of non-causation of real right act. Scholars who advocate this theory believe that the theory of real right behavior lies in protecting transaction security. In the German common law era, this theory is necessary because it does not recognize the system of bona fide acquisition. However, the German Civil Code clearly stipulates the system of bona fide acquisition, which is enough to maintain the security of transactions. In this respect, the theory of dimensionless has lost its foundation of existence. ②

(2) Based on the theory of non-causation, with the principle of publicity and trust, supplemented by the system of bona fide acquisition, the system of property right change in China is constructed to protect the third party. This view holds that the system of bona fide acquisition and the principle of publicity and public trust deny the theory of non-causation of real right act while insisting on their own rationality, while the principle of non-causation contains and criticizes the principle of publicity and public trust and the system of bona fide acquisition. ③

(3) Based on the theory of non-causation, supplemented by bona fide acquisition. This view holds that the system of bona fide acquisition has great defects and should be replaced by the principle of non-causation, but considering that the system of bona fide acquisition embodies the requirements of transaction justice in the sense of subjective mentality, it can be used as a supplement. ④

Which of the above theories is more in line with the spirit of law and the needs of practice, and which is more reasonable? Or what kind of model should be adopted to construct the third party protection system under the condition that the above theory is not perfect? When expounding my own point of view, the author also discusses the choice of the principle of publicity and public trust, the principle of non-causation, the system of bona fide acquisition, their relationship and value orientation, and holds that the third party protection system should be constructed with publicity and public trust as the principle and bona fide acquisition as the specific system. Two systems for protecting third parties are described in detail below.

Second, the principle of publicity and public trust-the principle basis of the third party protection system.

The publicity of real right refers to the credibility of the enjoyment and change of real right and the external performance of the public. ⑤ Now all countries and regions recognize this principle for the following reasons: First, all countries and regions that adopt the mode of property right change of property right doctrine clearly distinguish between property right and creditor's right, and recognize that property right behavior and creditor's right behavior coexist, and the existence of property right behavior needs certain theoretical support, that is, what kind of behavior is property right behavior in the transaction process. In view of the exclusiveness of real right to the third party, the change of real right will limit the interests of the third party. In order to avoid the possible loss of interests of the third party, it is required that the change of real right be expressed in a way that can be observed from the outside, which is publicity. According to the principle of formalism of real right, publicity itself is the expression of real right behavior. At the same time, publicity has realized its value in the transaction, which can maintain the security of the transaction and ensure the market order. Secondly, under the mode of the change of creditor's rights and property rights, the effect of the change of creditor's rights and property rights itself is not necessary. However, this mode of real right change is the same as that of formalism, that is, taking into account the static and dynamic security of real right transaction, and still needs the help of publicity system. Only through publicity can property rights be effectively preserved, otherwise they will not be recognized and fully protected by law. Through publicity, the third party can have an objective standard to identify and judge the real right when participating in the transaction. Under normal circumstances, there is no need for substantive investigation, and only the external appearance of publicity can be used for fair trade. ⑦

However, when the right state of publicity is inconsistent with the state of real right, how to balance the interests between the real right holder and the third party who relies on publicity is also a sensitive issue in the change of real right. In order to solve this problem, we need publicity of credibility. The principle of public trust refers to the principle that even if the transferred subject matter has no right to dispose of it, the bona fide transferee can still obtain the real right based on the trust in the publicity. The credibility of publicity is based on the correct presumption of rights, which makes the third party in the change of real right trustworthy. This reliability is the publicity effect given by law. It can be seen that openness generates credibility, and the principle of public trust is a supplement to the principle of openness, and the principles of openness and public trust jointly realize their due value.

The principle of nullity of real right act means that the legal effect of real right act is not affected by creditor's rights act. Once the real right act is established and takes effect, even if the creditor's right act as the cause act is established or invalid, the legal effect of real right change will still occur. For the value of the theory of non-causation, scholars who support the theory can often come to the understanding that "the safety performance of unauthorized transactions" is the most important function of the non-causation of real right behavior. Indication: Since they are all aimed at maintaining the security of transactions, what is the difference between the principle of invalidity of real right and the principle of public trust? From the perspective of safeguarding the interests of the third party, who can have more advantages? The author thinks that the principle of publicity and public trust is preferable for the following reasons:

First of all, the historical function of the theory of non-causation of real right act is not reflected by protecting the bona fide third party in the transaction. Because in German civil law, as early as the common law in the Middle Ages, the protection of the principle of public trust to the transaction security was confirmed, and the historical function of the non-causation of real right behavior was to eliminate the disadvantages of the registration substantive examination system that hindered the transaction convenience and excessively infringed on the private life of civil subjects, which opened the way for the development of capitalism. 1 1 The function of safeguarding the interests of the third party and ensuring the security of transactions in dimensionless theory is only the result of the development of modern law. Therefore, from the perspective of safeguarding the interests of the third party and protecting the security of transactions, the principle of publicity and public trust plays an earlier role than the theory of non-causation, which shows that the theory of non-causation of real right act as the theoretical basis and logical starting point of the principle of publicity and public trust is untenable. Moreover, if we still insist on this view, we can't explain the fact that the country that recognizes the theory of non-causation of real right behavior recognizes the principle of publicity and public trust.

Secondly, the theory of non-causation of juristic act of real right protects the third party by acknowledging the relationship between real right and creditor's rights within the parties, and then excluding the influence of creditor's rights on the relationship of real right, while the principle of publicity and public trust directly protects the trust interests of the third party externally publicized by the parties with the change of real right, and does not change the nature of the internal legal relationship of the parties, so it is more reasonable. 12

Thirdly, when the principle of non-causation and the principle of publicity and public trust appear at the same time, there is a certain intersection in protecting the value of the third party. From this intersection, we can also get a glimpse of the advantages and disadvantages.

First of all, when the act of real right is invalid or invalid, they have different provisions on the effectiveness of the change of real right. According to the principle of non-causation, the validity of the act of real right is not affected by the act of creditor's rights. However, when the real right act itself is invalid, the real right cannot be changed, which is not conducive to the protection of the third party; If the principle of publicity and public trust is adopted, the interests of bona fide third parties can be guaranteed, that is, the principle of publicity and public trust in the change of property rights can guarantee the third party who does not know that the punishment is based on invalid or invalid property rights behavior to obtain property rights. It can be seen that in some occasions, when the principle of non-causation can not play a role, the principle of publicity and public trust can assume the function of maintaining transaction security.

Secondly, the principle of public trust in the change of real right can replace the function of the principle of no cause. In a word, even if we don't recognize the principle of non-causation, the principle of publicity and public trust can partially realize the function of non-causation theory. 13 This situation refers to the situation that the creditor's right act is invalid or invalid, but the property right act is valid. According to the principle of non-causation, in this case, the effect of real right change can occur, and the third party can obtain real right; However, according to the principle of publicity and public trust, it also has the same effect, and a bona fide third party can get corresponding legal protection according to the credibility of publicity.

Thirdly, the principle of no cause can play a role in some occasions, but the principle of publicity and public trust is irreplaceable, but this is not a defect of the principle of publicity and public trust, on the contrary, it reflects some disadvantages of the principle of no cause. Specifically, when the third party learns that the transferor is an unauthorized person and deals with it, the third party realizes the possession of the property or registers it as the obligee. At this time, according to the principle of non-causation, the third party can obtain real right and be protected by law. However, according to the principle of publicity and public trust, only a third person who trusts publicity in good faith will have credibility. At this time, the third person is malicious and cannot be protected by law. That is to say, if we don't recognize the non-causation of real right behavior, it will be difficult to protect such a third party by the principle of public trust in the change of real right.

But in fact, such a third party should not be protected. As far as the value goal of law is concerned, the principle of publicity and public trust is to exchange the efficiency and safety of market transactions at the expense of fairness. However, when the third party maliciously uses the legal preference for personal gain, the law changes from protecting the third party to protecting the real obligee, completing the return of negation of negation. At the same time, this process itself is a process of balancing interests. The third party is malicious and then tends to protect, which violates the original intention of the principle of publicity and public trust, and it is difficult to make sense from emotion to reason. Therefore, it is correct for the principle of public trust to choose not to protect malicious third parties, while it is debatable for the principle of invalidity to equally protect bona fide third parties and malicious third parties. This is also the reason why German law properly corrects the absence of real right act in practice to limit its function.

To sum up, it is desirable to take the principle of publicity and public trust as the basic principle of protecting the third party, but the principle of nullity can not replace the principle of publicity and public trust, and can only play an auxiliary reference role in some occasions.

Thirdly, the system of bona fide acquisition-the institutional basis of the third party protection system.

(A) criticism and counter-criticism of the bona fide acquisition system

The traditional definition of bona fide acquisition system is: the possessor of another person's chattel has no right to dispose of it, and after the chattel is illegally transferred to a third person, if the third person acquires the chattel in good faith, he can legally acquire the ownership of the chattel. The system of bona fide acquisition has been adopted by the legislation of most countries (for example, Articles 2279 and 2280 of the French; Article 707 of Yimin; Demin articles 932, 933, 935 and 1207; Articles 367 and 368 for Austrian citizens; Ruimin 714,884, 2 items, 933 articles; Japan's article 192), but in modern society, the important value of protecting the interests of the third party in the change of property rights is increasingly highlighted. In China's judicial practice, bona fide acquisition has been widely recognized and has become an important theory to protect interests and maintain transaction order. However, in recent years, there have been many criticisms about the bona fide acquisition system, among which the most targeted view is that the bona fide acquisition system determines whether the interests of the third party should be protected on the condition of subjective goodwill, which is in line with people's legal feelings, but it is also a fatal flaw of this system. 15 here, many scholars make a big fuss about "subjective goodwill" and "objective goodwill". The fuzziness and lack of maneuverability of "subjective goodwill" are its main defects, while the standard certainty and maneuverability of "objective goodwill" are its strengths. As for the system of bona fide acquisition, most scholars think that it adopts "subjective standard", while the principle of publicity and public trust adopts "objective goodwill", and there are differences between them. However, the author believes that both the bona fide acquisition system and the principle of publicity and public trust have the standard of "subjective goodwill". In the principle of publicity and public trust, the credibility of publicity is based on the existence of "goodwill", which refers to the ignorance of the third party, that is, not knowing or not knowing. "I don't know" and "I shouldn't know" are also subjective identities, reflecting people's subjective psychological state. Therefore, the principle of publicity and public trust also embodies a certain "subjective standard" here. In contrast, the system of bona fide acquisition is not a purely subjective thing, as some scholars say, which contains a large number of objective elements, that is, it is also considered from an objective perspective when identifying "goodwill". For example, a third party can prove its goodwill by presuming that the possessor is the obligee according to the publicity of the possession of movable property. As for the true subjective psychological state, there is no need to think about it, and others can also infer the goodwill of a third party by virtue of the presumed effectiveness of chattel possession. Therefore, the "goodwill" in the system of bona fide acquisition also embodies certain "objectivity". However, there are only two points to note here:

The first is the burden of proof. In the bona fide acquisition system, the third party is responsible for proving that he is bona fide, that is, once a lawsuit is caused, the third party should prove that he does not know or should not know that the right of publicity is inconsistent with the state of real right. This kind of proof is difficult, at least it brings some psychological pressure to the third party, so it has its disadvantages to protect the interests of the third party. The author thinks that the coordination lies in the implementation of the principle of "inversion of burden of proof", that is, the principle of "presumption in good faith", which is expressly confirmed in Article 944 of Taiwan Province Civil Code and Article 933 of German Civil Code. When the third party deals with the possessor (the person who has no right to dispose of it), it should be presumed that the third party is in good faith according to the presumed effectiveness of the right of possession and the credibility of possession. If the original obligee claims the right, the third party shall be responsible for proving that it is not in good faith. If it cannot be proved, the third party will acquire the ownership of the property. The principle of "presumption in good faith" exempts the third party from the burden of proof and is extremely beneficial to the protection of the third party. As long as you don't understand the defects of publicity, you can get property rights with peace of mind and you can trade with peace of mind.

The second is the determination of goodwill. Generally speaking, goodwill is not known or should not be known. Understanding goodwill as "ignorance" has changed into * * * epistemological, and the key lies in the identification of words such as "negligence", "gross negligence", "knowing", "knowable" and "generally knowable". 16. When the original obligee proves that the third party is at fault (gross negligence) and doesn't know the real right state, or "ordinary people know" that the image right is flawed, but the third party doesn't know. Is it goodwill? These problems exist in the principle of publicity and public trust and the system of bona fide acquisition. The author suggests enhancing the credibility of publicity, that is, as long as the third party doesn't know that the right to publicity is flawed, it can be protected by law, whether it is at fault or not. This can avoid the subjective identification of the above vague words, truly realize the objectification of goodwill standards, and ensure the speed of transactions. Similarly, the system of bona fide acquisition should try to avoid such problems and achieve harmony with the principle of publicity and public trust.

(B) the development of bona fide acquisition system

In the above article, the author expressed his opinions and suggestions on the criticism of bona fide acquisition system. As many scholars have said, the traditional acquisition in good faith has some defects, but this cannot deny its positive role in protecting the interests of the third party. Any system has a process of continuous improvement and development, and the system of bona fide acquisition is no exception. It is not advisable to completely deny it because of some minor drawbacks. The correct attitude should be to improve and develop it. The author believes that what needs to be developed is the understanding of the nature of bona fide assignee's rights acquisition, that is, in addition to the above-mentioned "inversion of burden of proof" and "bona fide identification", the understanding of the nature of bona fide acquisition. In this regard, traditional legislation and theory generally understand the bona fide acquisition system as the original acquisition of ownership. In other words, the premise of bona fide acquisition is that the law first determines that unauthorized disposition is invalid, and the third party has no legal reason to accept the subject matter from unauthorized disposition. However, because the third party is in good faith, the law allows it to keep the subject matter exceptionally, thus taking the legal provision of bona fide acquisition as the reason for the third party to keep the subject matter. 17 Similarly, Taiwan Province scholars Mr. Zheng Yubo and Mr. yang yuling also advocated "special provisions of law", saying that "the right to acquire in good faith is not the inheritance right of the original right, but the special provisions of law, so the original acquisition theory is adopted." 18 from this point of view, it is generally said that bona fide acquisition is a kind of original acquisition, which is obtained through the facts specially stipulated by law, rather than through legal acts. This is tantamount to slapping a third party first, and then comforting with the ownership of the subject matter. 19 moreover, the qualitative acquisition of the factual behavior of the original acquisition theory interrupts the legal relationship between the unauthorized disposition and the bona fide third party, and when the legal relationship between the unauthorized disposition and the bona fide third party is flawed, it legally deprives the bona fide third party of its cancellation right. That is to say, between the bona fide third party and the unauthorized disposition, besides the unauthorized disposition, there are other factors that make the legal act invalid and revocable. In this case, the legal effect of the change of real right should not occur. However, if we adopt the theory that "acquisition in good faith is an acquisition specially stipulated by law", even if there are other invalid and revocable factors in the legal act, the property right will change, which objectively prevents the third party from exercising the revocation right, and the original system of protecting the third party has a restrictive effect on the third party and is unfavorable to its protection.

To sum up, the author thinks it is more reasonable to adopt derivative acquisition theory in bona fide acquisition, because it will be more conducive to protecting the interests of bona fide third parties. Due to the goodwill of the transferee, the deficiency of unauthorized disposition can be corrected, and the unauthorized disposition behavior can become an effective exception. If there are other factors that affect the validity of the legal act, making the unauthorized disposition invalid or revocable, the third party can exercise the right of revocation and other rights to give relief, refuse to obtain the property right, and demand the unauthorized disposition person to return the unjust enrichment (paid price). Of course, we should also see that the adoption of the theory of bona fide acquisition of inheritance means giving the unauthorized person the right to dispose and property rights, and the behavior between him and the third party becomes an effective authorized disposition, which effectively protects the interests of the bona fide third party, and at the same time makes the tripartite legal relationship centered on the unauthorized disposition fall into unexplained logical contradictions.

(C) the relationship between bona fide acquisition system and the principle of publicity and public trust

The value of bona fide acquisition system and the principle of publicity and trust lies in maintaining transaction security and ensuring the normal order of the market economy, but they do not exist and play a role in isolation, but are closely related. First of all, the credibility of publicity is the logical basis of bona fide acquisition of movable property. As a legal system, the credibility of possession contains a presumption supported by law: that is, possession, as a means of publicity of movable property rights, has the function of representing the original rights. 2 1 and the third party who trusts the publicity in good faith, as representatives of the trading order, should be specially protected by law and realize the fast and smooth trading at the same time. The system of bona fide acquisition is based on such considerations. The German Civil Code and some subsequent civil codes have affirmed the system of bona fide acquisition on the premise of confirming the principle of public trust in property rights. In addition, the system of bona fide acquisition can concretize the principle of public trust of real right and realize maneuverability. Any principle needs certain specific theoretical support, and there is a specific system design that needs by going up one flight of stairs. Otherwise, due to the generality and fuzziness of this principle, its role in practice will be reduced. As the "principle institutionalization" design of the principle of publicity and public trust, bona fide acquisition system is conducive to the perfection of the principle of publicity and public trust, thus truly practicing its value.

Four. conclusion

In a word, the protection of the third party, as an important category and system of property law, has been gradually recognized by the civil law circles in China. How to objectively describe countries' positions and strategies on the protection of the third party, as well as the organic and reasonable operation of this system, are really urgent tasks for China academic circles. If we think about this issue purely within the framework and system of German property law, which is based on the division of burden behavior (creditor's rights behavior) and disposition behavior (mainly property rights behavior), then the judgment of the third party protection system based on the theory of juristic act without cause, the basic principles of property rights publicity and the specific system of bona fide acquisition is not only extremely strict in theory, but also very consistent with the reality of transaction security protection in practice. But the problem now is that we have not only German law, but also French law and Japanese law, which can operate well and effectively protect the interests of the three parties without adopting the theory of real right act. More importantly, China is formulating its own civil code and property law. The construction of the third party protection system in property law should comprehensively consider China's legal tradition, legal theory resources and brand-new market transaction reality, rather than simply transplanting and repeating the relevant legal system of a developed country.

At the end of 2002, the Draft Property Law of People's Republic of China (PRC), which was formally submitted to the 3rd1meeting in the National People's Congress Standing Committee (NPCSC) for deliberation, failed to recognize the theory of real right act and the principle of non-causation, which may also be a reflection of the mainstream thoughts in China's legal circles. Therefore, in the property law, the third party protection system we see is based on the "principle-system" framework model of property right publicity and bona fide acquisition. From the strict logical relationship, the principle of publicity and credibility of real right is the logical premise of bona fide acquisition system, which is supported by publicity and credibility of real right and appearance theory, and conforms to the jurisprudence that principle dominates rules (systems). However, due to the concreteness and high applicability of bona fide acquisition system (the draft Civil Code has four detailed provisions on bona fide acquisition system), it has obvious advantages over the more abstract principle of publicity and public trust in protecting the third party. Therefore, the author believes that the system of bona fide acquisition is the focus of the third party protection system in the property law.