Acquisition in good faith, also known as instant acquisition, refers to a legal system in which a person without the right to dispose transfers his movable property or immovable property registered in his name to a third party, and if the third party can acquire the ownership of the property in good faith when trading, the original owner cannot pursue it.
Generally speaking, bona fide acquisition originated from the system of "protecting hands with hands" in Germanic law. Since modern times, the civil laws of various countries have generally affirmed this system and made clear provisions (but foreign laws are usually limited to movable property). The purpose of establishing bona fide acquisition system in law is to maintain transaction security, and the basis of this system is the credibility generated by the publicity of property rights.
The security of property order includes static security and dynamic security. From the standpoint of protecting the owner, his ownership should not be destroyed by the unauthorized disposition of others, and the owner can only seek relief from the unauthorized disposition. However, if we pay too much attention to the protection of ownership and ignore the transferee's reasonable trust in the transferor's possession of the subject matter or registration right, it may lead to the buyer's self-fear and fear of accidents. In the modern economic life with frequent, rapid and complicated market transactions, it is often impossible or difficult to ask the buyer to know whether the transferor has the right to dispose of it, which will cause transaction difficulties or greatly increase the cost of credit investigation. The system of bona fide acquisition is closely related to and coordinated with the credibility system of real right publicity, which distinguishes the different situations of the transferee's goodwill or malice, protects the interests of the bona fide third party, takes into account the balance between static security and dynamic security of property order, and adapts to the requirements of social and economic development, so it is a reasonable and moderately good system.
Second, the constitutive elements of bona fide acquisition
Article 106, paragraph 1 of China's Property Law stipulates: "If the person who has no right to dispose of it transfers the real estate or chattel to the assignee, the owner has the right to take it back; Unless otherwise provided by law, the transferee shall acquire the ownership of the real estate or chattel under any of the following circumstances: (1) The transferee is in good faith when accepting the real estate or chattel; (2) Transfer at a reasonable price; (3) The transferred immovable property or movable property that should be registered according to law has been registered, and those that do not need to be registered have been delivered to the transferee. " According to this provision and combined with academic theory, we should grasp the following five elements of bona fide acquisition:
(1) The transferor shall be the possessor of movable property or the registered owner of immovable property.
This requirement essentially requires that the transferor (the person who has no right to dispose) should have the appearance of "right" to other people's things, which is the premise of bona fide acquisition. The institutional basis of bona fide acquisition lies in the credibility of real right publicity, while real estate registration and chattel possession are both publicity methods of real right. The rights and obligees commended by publicity according to law have the correct effect of making unspecified others trust and the effect of goodwill protection. Only by registering as the owner of real estate without the owner of real estate (for example, the owner of real estate borrows the name of children or others to register real estate, and some real estate is only registered in the name of one person, etc. ) or the actual possession of other people's movable property (for example, the lessee, the custodian, the borrower and the buyer in the sale of retained ownership occupy other people's movable property, etc.). ) Can an unspecified third party be endowed with the representation of rights, so that it can reasonably trust that the registered obligee or the possessor of movable property is the real obligee and conduct transactions with it? While the person who has no right to dispose of the appearance of the subject matter disposes of other people's things, there is no way for a third party to reasonably trust and obtain it in good faith.
(2) The transferor has no right of disposal.
Obtaining in good faith corresponds to unauthorized disposition, and only when there is no right to dispose, will there be the problem of obtaining in good faith by a third party. Therefore, another important element of bona fide acquisition is that the transferor has the right on the surface, but actually has no right to dispose of it. The transferor has no right to dispose, including no right to dispose at all and lack of complete right to dispose (for example, someone disposes of something without the consent of others). If the registered obligee or possessor of movable property is entrusted by the real obligee to dispose of it, and the person who has no right to dispose of it later obtains the right to dispose of it or is ratified by the obligee, the rule of bona fide acquisition does not apply. In this case, the transfer behavior should belong to himself.
(3) The transferee shall pay a reasonable consideration based on the transaction.
The system of bona fide acquisition aims at protecting the security of transactions, so the problem of bona fide acquisition only exists when there is a transaction between the transferor and the transferee. According to Article 106 of Property Law, acquisition in good faith should be based not only on paid transactions, but also on reasonable consideration. Obtaining property for free through non-transaction means such as gift or inheritance does not have the effect of bona fide acquisition, otherwise it will cause obvious imbalance in the protection of interests of all parties; Although it is a paid act, obviously transferring property at a low price does not constitute bona fide acquisition (obviously low price will affect the judgment of "goodwill" of a third party). Whether the transferee actually paid the agreed "reasonable consideration" generally does not affect the establishment of bona fide acquisition; If the price has not been paid, the assignor or the original creditor may claim the creditor's rights from the assignee.
(4) The transferee shall acquire the property in good faith.
The transferee must be in good faith when accepting real estate or movable property from the person who has no right to dispose of it, which is a necessary condition for bona fide acquisition. It doesn't matter whether the transferor is in good faith. There are two different views on the standard of goodwill: positive meaning theory and negative meaning theory. The former believes that the transferee must have the idea of treating the transferor as the owner in order to be in good faith. The latter thinks that the transferee does not know or should not know that the transferor has no right to dispose of goodwill. The latter theory is a general theory, which is adopted by most legislative cases. According to this general statement, the transferee does not know that the transferor has no right to dispose of the property without gross negligence, which constitutes goodwill [2]. However, the transferee knows or should know that the transferor has no right to dispose of the property due to gross negligence, which is malicious (that is, malicious). The determination of "gross negligence" should be based on objective standards, that is, ordinary people can make normal judgments based on their own life and trading experience according to specific circumstances [3].
Another problem that needs attention is: First, because the credibility of real estate registration is far better than the possession of movable property, the bona fide acquisition of movable property and the bona fide acquisition of movable property have different identification standards, and the bona fide acquisition of movable property requires the assignee to pay more attention than or stricter than the bona fide acquisition of movable property [4]. Second, the time to determine whether the transferee is in good faith should be based on the transferee's situation at that time. Whether the transferee knows the real situation after the transferee does not affect the establishment of bona fide acquisition [5]. Thirdly, based on the presumption rule of the correctness of the right to image and the common legislative practice, the transferee does not bear the burden of proof whether it is in good faith, but the other party who denies it is in good faith; Only when the other party provides negative evidence, it is necessary for the transferee to deny his goodwill.
(5) The transfer of the subject matter must have been completed or delivered.
The completion of bona fide acquisition is based on the fact that the transferred real estate and movable property have been registered or delivered, that is, "those that should be registered according to law have been registered and those that do not need to be registered have been delivered to the transferee". If the unauthorized disposition person and the transferee only reach an agreement on the transfer of the subject matter, but fail to complete the registration or delivery, only a debt relationship will arise, and no bona fide acquisition can occur, nor can they confront the property owner. The creditor may stop the transaction and recover the subject matter in time.
Controversial issues are as follows: First, when disposing of real estate, if the person who has no right to dispose of it has applied to the registration authority for change registration after signing a contract with a third party, but has not completed the transfer registration just because of the registration procedures, can it be regarded as "registered" and has the effect of obtaining it in good faith? In this regard, there are different legislative practices (for example, there are positive provisions in the German Civil Code). According to the spirit of China's property law, we believe that we should hold a negative attitude at present [6]. Second, is the delivery in "the movable property has been delivered to the transferee" limited to the actual delivery? Can the way of concept delivery produce the effect of honesty? In this regard, there are different opinions in theory and legislation [7][8][9]. According to the general understanding of academic circles and my own opinion, simple delivery or instruction delivery in conceptual delivery can be established in good faith; However, if the transferee obtains the indirect possession of the movable property only by changing the possession, the effect of bona fide acquisition may not necessarily occur before the actual delivery, or the change of the real right of the movable property may not be able to resist the recourse of the third party or the owner.
Third, the legal effect of bona fide acquisition.
The occurrence of bona fide acquisition can produce two effects: the effect of real right and the effect of creditor's right.
(A) the effectiveness of property rights
The occurrence of bona fide acquisition has the effect of real right change between the transferee and the original owner, that is, the transferee obtains the ownership of real estate or movable property, while the original owner loses the ownership of the property. There are two different views on the basis of the third party's bona fide acquisition of the ownership of the transferred property: the theory of immediate prescription and the theory of non-prescription. The theory of non-prescription has different views, such as the theory of right appearance, the theory of legal authorization, the theory of possession validity and the theory of special legal provisions. Among them, the theory of special provisions of law is a general theory. Most scholars in our country believe that the bona fide acquisition system is a mandatory property right allocation between the original obligee and the assignee in order to protect the transaction security. The transferee's acquisition of property ownership is based on the direct provisions of the property law rather than a legal act, so it has certainty and finality.
Because the transferee's acquisition of the ownership of the transferred property in good faith is based on the provisions of the law and has a legal basis, the original owner may not claim the return of the property from the transferee, nor may he claim the claim for unjust enrichment or tort; Similarly, the ownership of the subject matter obtained by the transferee in bona fide acquisition should belong to the original acquisition rather than the derivative acquisition. However, it is not appropriate to generalize whether the original rights burden of the subject matter can be completely lifted after bona fide acquisition. Article 108 of China's Property Law stipulates: "After the bona fide transferee obtains the chattel, the original rights on the chattel are extinguished, except that the bona fide transferee knows or should know the rights at the time of the transferee." This provision distinguishes whether the bona fide assignee knows and decides whether it should bear the original rights burden on the property, which conforms to the principle of good faith and the common rules of risk sharing, and is reasonable and worthy of recognition. As for whether there are other real rights burdens on real estate, it should be judged according to whether there is registration. If there is registration, of course, it should be considered that the transferee knows the burden of this right and should bear it; If the burden of creditor's rights (such as lease or loan) is eliminated because a third party obtains the ownership of real estate in good faith, we think it should also be handled in accordance with the spirit of the above provisions.
(ii) Effectiveness of creditor's rights
The occurrence of bona fide acquisition can create a debt relationship between the original owner and the unauthorized person. Paragraph 2 of Article 106 of the Property Law stipulates: "If the transferee obtains the ownership of real estate or chattel in accordance with the provisions of the preceding paragraph, the original owner has the right to claim compensation from the unauthorized person." From the theoretical and practical point of view, the original owner can actually choose to exercise the following three kinds of creditor's rights against the unauthorized person to make up for his losses: First, the right to claim damages for non-performance of debts. When there is a contractual relationship between the original owner and the transferor, such as leasing, borrowing and keeping, the original owner can claim damages for breach of contract according to the debt default system. The second is the right to claim compensation for tort damage. From another point of view, it is an infringement that the transferor illegally disposes of other people's movable property without the right to dispose of it, and the original owner can claim tort damages. The third is the right to claim the return of unjust enrichment. If the transferor transfers other people's property to a bona fide third party with compensation, the income constitutes unjust enrichment, and the original owner can claim to return it [12][ 13]. Debt relations can also occur between the transferor (the person who has no right to dispose of it) and the transferee. According to the general theory of academic circles, if the transferee has obtained the ownership of the property in good faith according to registration or delivery, but the price has not been settled, the transferor (who has no right to dispose of it) can claim to pay the price or pursue its liability for breach of contract [14]. Accordingly, after acquisition in good faith, if the subject matter is defective, the transferee has the right to require the transferor to bear the liability for warranty of defects according to the transfer contract [15].
Fourthly, the expansion and limitation of bona fide acquisition in the applicable object.
(A) expand the application of bona fide acquisition system.
1. Application of bona fide acquisition system in real estate. The object of bona fide acquisition in foreign legislation is limited to movable property, while China's Property Law stipulates that both immovable property and movable property are applicable, expanding its scope of application. Whether this provision is appropriate or not, and whether it is coordinated with other relevant provisions, there are different opinions in academic circles. In my opinion, there are two options to obtain real estate in good faith from unauthorized persons: one is to solve it through the credibility system of real estate registration; The second is to solve it through the bona fide acquisition system. No matter which one you choose, there is no absolute right or wrong, only which one is more suitable. As mentioned above, bona fide acquisition of movable property and bona fide acquisition of immovable property are based on the credibility of movable property possession and immovable property registration respectively, and their institutional basis and internal logical relationship are the same. However, due to the participation and examination of the national registration authority, the real estate registration has a strong credibility, and the registered obligee is inconsistent with the real obligee, resulting in relatively few disputes. Therefore, in many countries, the problem of obtaining real estate rights from the registered flawed obligee is solved by the credibility system of real right registration, while the problem of obtaining movable property from the movable property owner without disposition right is adjusted by another system of bona fide acquisition of movable property. However, because their system design is based on the credibility of property rights publicity, the system constitution requires that the third party must be in good faith and generally requires that it be obtained based on paid transactions. Therefore, it is not obviously inappropriate to stipulate that they are a feasible choice in legislation in the bona fide acquisition system of China's Property Law [16].
2. The application of bona fide acquisition system in the case of no right to dispose of other real rights. In foreign legislation, in addition to the provision of bona fide acquisition of chattel ownership, it is usually recognized that chattel pledge, use right and usufructuary right can also be acquired in good faith. On the one hand, China's Property Law extends the object of bona fide acquisition to real estate, on the other hand, the third paragraph of Article 106 stipulates: "If a party obtains other property rights in good faith, refer to the provisions of the previous two paragraphs." According to this regulation, the types of things acquired in good faith are not limited to ownership. Under the legal conditions, various mortgages and pledges in the usufructuary right and security right of real estate can also be obtained in good faith. Whether lien can be obtained in good faith is controversial. Many scholars believe that although the chattel possessed by the creditor in the lien relationship is generally limited to the chattel owned by the debtor himself or with the right to dispose of it, if the subject matter is not the chattel of the debtor and the creditor does not know it, the lien can be obtained in good faith. Article 108 of the Supreme People's Court's Interpretation on Several Issues Concerning the Application of Guarantee Law also adopted this spirit. However, we believe that lien has nothing to do with bona fide acquisition. The creditor occupies the movable property of another person who belongs to the same legal relationship as his creditor because of his normal business activities. Even if the subject matter does not belong to the debtor himself, lien can be generated. The lien holder must be an uninformed "bona fide" creditor [17][ 18], which is unnecessary and should not be restricted. For example, if the borrower's vehicle is damaged, the borrower will send it.
In addition, the rule of bona fide acquisition can also be applied to the case that the unauthorized person does not enjoy all the right to dispose of the subject matter but only enjoys part of the right to dispose of it (a typical case is that some or some * * * people dispose of the real estate or movable property owned by * * * without authorization). This situation can also be understood as the expansion of the application scope of bona fide acquisition.
(B) the restrictions of bona fide acquisition system on the applicable objects
1. Things acquired in good faith are not applicable. The acquisition of ownership shall not violate the law, which is the general principle of ownership acquisition. The provisions of the Property Law on bona fide acquisition also clarify that "unless otherwise provided by law". According to this article and other relevant laws and regulations, generally speaking, registered securities must be transferred through endorsement or transfer procedures, and will not be acquired in good faith; Monetary cash usually applies the rule of "possession is everything", not the rule of bona fide acquisition; Drugs, guns and ammunition, state-owned property, cultural relics and other articles prohibited from circulation by law. , can not be obtained in good faith according to law. [Page]
2. On the application of bona fide acquisition system in restricting the possession of detached objects. China's previous legal system denied in principle that bona fide acquisition was applicable to lost property, stolen goods and other possessions. In the formulation of property law, most scholars advocate drawing lessons from foreign common practices and distinguishing different situations, that is, the provision of bona fide acquisition can also be applied to the possession of detached things conditionally and restrictively [19][20]. The draft property law also makes corresponding provisions on this. Finally, Article 107 of the Property Law makes special provisions on the bona fide acquisition of lost property: "The owner or other obligee has the right to recover the lost property. If the lost property is occupied by others through transfer, the obligee has the right to claim damages from the person who has no right to dispose of it or request the transferee to return the original property within two years from the date when he knows or should know the transferee. However, if the transferee buys the lost property by auction or from a qualified operator, the obligee shall pay the fees paid by the transferee when requesting the return of the original property. After paying the fee to the transferee, the creditor has the right to recover from the unauthorized person. " The design of its rules is reasonable and worthy of recognition. However, this provision does not recognize the bona fide acquisition of stolen goods, and there are still different understandings about whether this practice is appropriate or not. In order to maintain the consistency of the application of legal rules and properly protect the legitimate rights and interests of bona fide third parties, I advocate that this provision should also be applied to "stolen and robbed property" [2 1]. Even if the property law does not admit that the stolen goods were obtained in good faith, it is not necessary to recover them in practice, but to treat them differently according to whether the buyer is in good faith, whether he has paid a reasonable price, the place and mode of the transaction, etc.
The legal differences between verb (verb's abbreviation) and other goodwill protection systems.
In addition to the bona fide acquisition system in the Property Law, there are many provisions on the protection of bona fide actors in the law, which are similar and related to the bona fide acquisition system, but not the same. If the law has other provisions on the protection of the rights and interests of bona fide actors, the provisions of the Property Law on bona fide acquisition should not be applied. Therefore, it is necessary to clarify and distinguish the following related issues belonging to different fields and different natures, so as to avoid mistakes in the application of the law:
First of all, unauthorized disposition and bona fide acquisition should be distinguished from unauthorized agency, apparent agency and its consequences. Unauthorized disposition, as the premise of bona fide acquisition in property law, refers to disposing of other people's things in one's own name, and unauthorized agency is a related legal act in the name of others. Therefore, in practice, people other than the registered obligee (such as the children of the owner or the lessee of the house) cheat the third party and the registration authority by defrauding the original real estate license, forging the identity certificate of the owner and the power of attorney and other necessary documents, and dispose of other people's real estate. Because they are the agents of the real obligee, they should constitute unauthorized agents; If a third party trusts its identity and disposition right and conducts transactions with it, it shall be handled in accordance with the rules of agency by estoppel in Article 49 of the Contract Law.
Secondly, we should distinguish unauthorized disposition and bona fide acquisition from the provisions on agency by estoppel and its consequences. According to Article 50 of the Contract Law, if the legal representative or person in charge of a legal person or other organization enters into a contract and disposes of the property of the unit beyond its authority, the representative's behavior is valid, and the disposition of the property is also valid, except that the other party knows or should know that it is beyond its authority. The rights and interests of the bona fide counterpart and the acquired property are protected according to the provisions of the apparent representative, which is similar to bona fide acquisition in the property law, but its system structure and applicable conditions are different and cannot be confused.
Third, the bona fide acquisition by a third person who has no right to dispose of other people's property should be distinguished from the situation of restricting the right to dispose of his own property without authorization. If the right to dispose of one's own property is restricted according to law (such as being supervised, detained or sealed up) but transferred or mortgaged without authorization, the question of whether a bona fide third party can be protected should be dealt with according to other rules. This situation does not belong to the problem of bona fide acquisition by a third party arising from the disposal of other people's property in the property law.
Fourthly, we should distinguish between unauthorized disposition under the premise of bona fide acquisition and disposition due to incapacity. If a person with no capacity or with limited capacity conceals his capacity, causing others to mistake himself for a person with capacity and conduct transactions with him, the protection of the rights and interests of the transferee in good faith should be handled in accordance with the relevant provisions of the General Principles of the Civil Law and the Contract Law, but not in accordance with the provisions of the Property Law on bona fide acquisition [22].
Fifth, whether the bona fide acquisition system can be applied to creditor's rights or creditor's rights commended by securities, intellectual property rights and equity. Academic circles have different understandings of this issue [23]. Many people believe that this is an expansion of the system of bona fide acquisition in the scope of application. However, I believe that according to China's Property Law and the provisions of the Property Law, the provisions on bona fide acquisition in the Property Law only apply to two situations: first, the person who has no right to dispose of other people's property rights obtains it in good faith for a third party; Second, although the person who has no disposition right disposes of other rights except property rights, the rights set by a bona fide third party or obtained by a third party belong to property rights (for example, pledging the creditor's rights, equity and intellectual property rights of others for a third party). Therefore, the disposition of rights other than real right by the person without the right of disposition is only a matter of real right law in the second case mentioned above. If the person who has no right to dispose only transfers the creditor's rights, equity and intellectual property rights belonging to others to a third person (or licenses intellectual property rights to others), although there is a bona fide third person bound by the legal protection rules in principle, this situation does not belong to the issue of bona fide acquisition in property law and cannot be confused.