Theory of Property--Centered on Property Transfer

Author: Sun Peng
Publisher:
Publishing Date: 2005-03-01
Features: This paper is divided into six chapters. , two chapters study the relationship between property rights publicity and property rights change, chapters three and four study the methods of property rights publicity, chapters five and six study the effectiveness of property rights publicity. Chapter one discusses the two models of combining property rights publicity with property rights change: the publicity-against-ism and the publicity-as-a-requirement-ism. This chapter describes the dual legislative opposition between publicity-against-ism and publicity-as-a-requirement-ism by comparing the differences in property rights change and publicity systems between France, Japan, and Germany, Austria, and Switzerland. However, the theoretical color of this dual legislative opposition exceeds its practical significance, as publicity-against-ism and publicity-as-a-requirement-ism are showing an increasing trend of convergence. On one hand, in the legislation of publicity-against-ism, the ownership does not transfer with the agreement of the intention expression when selling specific goods, future goods, or others' goods. The legislation also allows parties to make special agreements on the time of transfer of movable property ownership to exclude the application of the intentionism rule; on the other hand, publicity-as-a-requirement-ism, as a formal requirement of property rights change, is becoming increasingly softened, especially in the case of movable property rights change, due to the introduction of concepts such as indirect possession and conceptual delivery, its "form" has ceased to be a form, and its legal effects are almost no longer different from those of publicity-against-ism. Despite this, the differences between the dual legislation cannot be entirely ignored. Examining publicity-against-ism and publicity-as-a-requirement-ism from multiple angles and judging which is better in legislative policy still has value. Publicity-against-ism facilitates transactions and maximizes respect for the transaction freedom of parties, but it has a series of irreconcilable contradictions in its institutional logic and is difficult to coordinate with relevant civil law systems, leading to great passivity in legal application. Publicity-as-a-requirement-ism fully adapts to the ideal of transaction safety pursued in modern society, with a coherent and natural institutional logic and close coordination with relevant legal systems. Moreover, publicity-as-a-requirement-ism grants the publicity method the formative power of property rights change, compared to the of publicity methods under publicity-against-ism, it also represents a more comprehensive publicity incentive for the parties to property rights change, especially for the recipient party. Publicity-as-a-requirement-ism not only provides "negative trust" protection for third parties in property rights transactions by the principle of "without publicity, there is no property rights change," but also, in the case of publicity errors, gives the publicity method credibility, thus providing "positive trust" protection for third parties by the principle of "as long as there is publicity, trust the publicity." Therefore, publicity-as-a-requirement-ism has a more complete publicity effect than publicity-against-ism. From the historical evolution of property rights publicity, publicity-as-a-requirement-ism was born to overcome the shortcomings of publicity-against-ism and inherently has the advantage of being a later-developed system. If publicity-as-a-requirement-ism is chosen in legislative policy, it cannot overlook the defects of sacrificing transaction speed and hindering transaction freedom. It is necessary to design specific systems by leveraging the strengths of publicity-against-ism and avoiding the weaknesses of publicity-as-a-requirement-ism to optimize publicity-as-a-requirement-ism. For this purpose, the following solutions can be chosen: one is to generally adhere to publicity-as-a-requirement-ism in the publicity of property rights change but adopt publicity-against-ism in individual property rights changes; two is to make the publicity of movable property rights change a recommended norm and allow transaction parties to exclude its application by means of intention expression.
Chapter two discusses the relationship between property rights publicity and property rights acts. A property rights act is a legal act that combines the intention expression of property rights change with the publicity method, exhibiting a distinct "duality" characteristic. From a subjective perspective, it is the intention expression of property rights change; from an objective perspective, it is the method of property rights publicity. Intention expression and publicity are both conditions for the formation of property rights acts. The concept of property rights acts, the independence of property rights acts, and the causationlessness of property rights acts together constitute the overall theory of property rights acts. Any proposition that cuts off the connection between these three aspects rebels against the origin of the property rights act theory. The evaluation of the property rights act theory should revolve around three aspects: facts, values, and system construction. In fact, as a method of property rights publicity, delivery and registration are neutral factual acts and do not necessarily carry the content of the intention expression of property rights change. Even if there is some intention when the publicity method is made, it cannot escape the so-called "creditor intention" and constitute a real act. The factual premise of the causationlessness of property rights acts, that is, the invalidity of the creditor act and the validity of the property rights act, almost does not exist. Since it is a legal act, property rights acts are also subject to the rules of legal act effectiveness, and they are often, rather than exceptions, invalid due to "common defects" with the creditor act. As for the relativization of causationlessness, it is essentially not a revision of the property rights act theory but a complete negation of the theory, playing the role of an "undertaker." In terms of values, the function of the property rights act theory in realizing transaction clarity is only an illusion. In reality, transaction life has become cumbersome and unbearable due to the involvement of the theory. The function of facilitating transaction convenience is also based on unrealistic criticism of the substantial examination of registration and a frantic pursuit of transaction freedom. Conducting a substantial examination of the entire process of property rights change is a necessary means to bring free transactions under the legal framework and ensure that transaction acts meet the requirements for the effectiveness of legal acts. As for the function of transaction safety protection of the property rights act theory, although it cannot be fundamentally denied, it also provides protection for malicious third parties, exceeding the reasonable limits of transaction safety. Moreover, in the absence of property rights change, transaction safety cannot be protected by the property rights act theory. Therefore, the so-called transaction safety protection is also insufficient. Not only do the functions expected by the property rights act theory fail to be realized or fully realized, but the theory also converts the ownership claim of the seller into an unjust enrichment claim when a sale is invalid, severely sacrificing transaction fairness. In recent years, proponents of the property rights act theory have used the method of interest balancing to prove that the property rights act theory does not violate the requirements of transaction fairness, but they have inappropriately expanded the scope of interest balancing, and their conclusions are not valid. In terms of system construction, the property rights act theory does not have an inevitable connection with civil legal act systems, civil general principles, unlawful disposition, good faith acquisition systems, unjust enrichment systems, reservation of ownership systems, and the setting of alienable rights. The property rights act theory is not a natural law of logic. Without the property rights act theory, the above systems can also be designed perfectly and accurately and operate more harmoniously and orderly. Regarding the relationship between the property rights act theory and property rights publicity, the method of property rights publicity is a constitutive requirement of property rights acts. If the property rights act theory is accepted, then the publicity of property rights change is the publicity of property rights acts. However, there is no inherent necessary connection between property rights publicity and property rights acts. In fact, whether or not the property rights act theory is accepted, it has no impact on the publicity of property rights. It is only that under different legislative systems, the relationship between property rights publicity and property rights transfer (creation) is different. Under the intentionism system, property rights publicity and property rights transfer (creation) are separated, while under the formalism system, they are integrated. However, the degree of integration under the property rights formalism and the creditor formalism is also different. Under the property rights formalism, they are completely integrated. Once the property rights change act is publicized, the effect of property rights change occurs, and the effectiveness of property rights change is produced according to the property rights act. Publicity is the sufficient condition for property rights change, and when the cause act is invalid, it gives rise to an unjust enrichment claim. Under the creditor formalism, property rights publicity is only a necessary condition for property rights change and must be combined with the cause act to produce the effect of property rights change. However, whether publicity is a sufficient or necessary condition for property rights change, it is still a condition for the effectiveness of property rights change. Since the property rights act is not the theoretical basis for property rights publicity, and the property rights act theory has many defects, we can completely construct a complete and scientific system of property rights publicity without regard to the theory. In fact, whether it is the current civil legislation in our country or the relevant civil legislation currently being carried out, it indeed tends to this choice.
Chapter three discusses the publicity methods of immovable property rights: registration. Registration is the legal recording of the acquisition, loss, and change of immovable property rights in the country's specialized books according to statutory procedures. Although it also reflects the macro-regulation and monitoring of the state on immovable property transactions, it is essentially a private law system. The current system of immovable property registration in our country is between the Torrens registration system and the rights registration system. On one hand, registration is the effective requirement for the change of immovable property rights; on the other hand, it implements the registration and certification system of immovable property. When improving the system of immovable property registration in the future, it is not necessary to completely copy a certain model, but should learn from and absorb beneficial components from different models based on our national conditions, and ultimately form an immovable property registration system with Chinese characteristics. According to this line of thought, the construction of our country's immovable property registration system should be based on the following points: 1. Adhere to the registration as a condition for the change of immovable property rights to maintain consistency with the choice of the formalism property rights change model; 2. Continue the registration and certification system to strengthen the publicity effect of immovable property registration and facilitate the conduct of immovable property transactions; 3. Adopt the principle of object compilation in the preparation of the registration ledger to clearly reflect all the rights relationships on the same immovable property; 4. Define registration capacity. In principle, all legally defined immovable property rights have registration capacity, and all rights involving the interests of third parties or the world should have registration capacity; 5. Have specialized administrative organs handle immovable property registration affairs uniformly; 6. Establish the right of registration application and the legal remedies for the right of registration application; 7. Clearly grant publicity credibility to registration and perfect relevant systems, such as substantial examination of registration applications, penalties for false applications and registration, and state compensation for erroneous registration, to ensure that the publicity credibility of registration does not excessively harm the rights of true rights holders. In terms of registration types, the current system in our country is not complete, and there is almost a blank in the law regarding preparatory registration. The future registration system should clearly stipulate the types of registration, such as priority registration, declaration registration, objection registration, and notice registration, and their legal consequences, especially the scope of application of notice registration, the occurrence of notice registration, and the effectiveness of notice registration.
Chapter four discusses the publicity methods of movable property rights: possession (delivery). From a static perspective, the publicity method of movable property rights is possession, and from a dynamic perspective, it is delivery. Possession is not a legal right but merely a fact with certain legal significance and protected by law. The constitution of possession requires an objective state of possession and an abstract "holding" intention in the subjective aspect, but this intention does not need to be specific to possessing a certain property right. In the determination of possession, the standard is gradually becoming vague. From actual holding to control within a certain time and space range to control through certain legal relationships, possession is also divided into direct possession and indirect possession, correspondingly, delivery is divided into actual delivery and conceptual delivery. Whether it is indirect possession or conceptual delivery, they both lack an objective material form and do not have the effect of publicity of property rights. Especially, in conceptual delivery, such as the change of possession, the change of property rights occurs due to the agreement of the parties' intentions, not only can the change of property rights not be publicized, but it also makes the difference between publicity-as-a-requirement-ism and publicity-against-ism no longer exist, and even makes publicity-as-a-requirement-ism less effective than publicity-against-ism. In fact, concepts such as indirect possession and conceptual delivery, which are seemingly confusing, were originally designed to alleviate the rigidity of publicity-as-a-requirement-ism. They explain the form required by publicity-as-a-requirement-ism in an infinitely broad way, so that it ultimately ceases to be a form, causing confusion in legal concepts, legal logic, and even legal systems. Our country's property rights legislation might as well abandon the concepts of indirect possession and conceptual delivery and directly set exceptions for publicity-as-a-requirement-ism in some property rights changes, adopting publicity-against-ism directly.
Chapter five discusses the publicity effect of publicity. The publicity effect of publicity is manifested as "without publicity, cannot oppose; with publicity, can oppose," and it plays a prominent role under the publicity-against-ism legal system and also has an expression under publicity-as-a-requirement-ism. The so-called "cannot oppose" does not mean that the effect does not occur, but refers to the fact that the change of property rights without registration has been completely effectively established between the parties. In the relationship with third parties, it is not absolutely invalid, only the parties cannot claim the effect of the change of property rights to third parties. Third parties can still recognize the effect of the change of property rights without registration, so the legal effect of "without publicity, cannot oppose" can only occur when a third party appears and claims it. Regarding the scope of third parties, in Japan, which adheres to publicity-against-ism, there has been a shift from unlimited to restricted in case law and academic theory. The standards for restricting the scope of third parties include the so-called "legitimate interest theory," "effective transaction theory," and "either eat or be eaten theory." Specifically, the third parties who cannot oppose without registration include various property rights acquirers, immovable property lessees, creditors who directly obtain control over immovable property due to reasons such as seizure, distribution, joining, and application; while the third parties who can oppose even without registration include unlawful actors, unlawful possessors, general creditors, as well as nominal owners with no actual rights and their assignees, assignees, and malicious third parties who violate good faith. In the publicity-against-ism legal system, the publicity effect of publicity is mainly discussed in the case of double sales of immovable property. To have a deeper understanding of the mechanism of the publicity effect of publicity and further prove that publicity-as-a-requirement-ism is better than publicity-against-ism, this chapter also specially examines the different regulatory models of publicity-against-ism and publicity-as-a-requirement-ism for double sales of immovable property. It is believed that the institutional design logic of publicity-as-a-requirement-ism is consistent, each link is connected, and the systems are mutually supportive and complementary. In contrast, under publicity-against-ism, it is difficult to explain theoretically and difficult to operate in practice. Therefore, the legal regulation of property rights change and publicity mode under publicity-against-ism is a failure. Taking this as a starting point, the scientificity of the property rights change and publicity mode under publicity-against-ism is questionable.
Chapter six discusses the publicity credibility of property rights publicity. The publicity credibility of publicity refers to the fact that for the subjects who have made property rights changes based on trust in false publicity, the rights relationship of publicity is treated as the real rights relationship, separating the formal and real rights relationship and producing independent effectiveness. The publicity credibility of publicity can cure the defects of rights in property rights change and break the actual existing property rights relationship?book_contents=Introduction The Relationship Between Property Rights Publicity and Property Rights Change Theory Chapter The Two Models of Combining Property Rights Publicity with Property Rights Change: Publicity-against-ism and Publicity-as-a-requirement-ism Section Publicity-against-ism I. French Law II. Japanese Law III. Anglo-American Law Section Publicity-as-a-requirement-ism I. German Law II. Austrian Law III. Swiss Law Section The Relationship Between Publicity-against-ism and Publicity-as-a-requirement-ism I. The "Displacement" of Publicity-against-ism Towards Publicity-as-a-requirement-ism II. The Softening of Forms in Publicity-as-a-requirement-ism Section Evaluation of Publicity-against-ism and Publicity-as-a-requirement-ism I. Is Publicity-against-ism Better Than Publicity-as-a-requirement-ism? II. Is Publicity-as-a-requirement-ism Better Than Publicity-against-ism? III. Optimization of Publicity-as-a-requirement-ism Chapter Two The Relationship Between Property Rights Publicity and Property Rights Acts Section Overview of the Property Rights Act Theory I. The Origin of the Property Rights Act Theory II. Overview of the Debate on the Property Rights Act Theory in China Section Constitution of the Property Rights Act Theory I. The Concept of Property Rights Acts II. The Independence and Causationlessness of Property Rights Acts Section Factual Judgment on the Property Rights Act Theory I. Is Delivery a True Contract? II. Is the "Objective Property Rights Agreement" an Independent Intention Expression? III. Is an Delivery Derived from an Error Also Valid? IV. The Relativization of Causationlessness: Savior or Undertaker of the Property Rights Act Theory? Section Value Judgment on the Property Rights Act Theory I. Property Rights Acts and Transaction Convenience II. Property Rights Acts and Transaction Clarity III. Property Rights Acts and Transaction Fairness IV. Property Rights Acts and Transaction Safety Section System Construction of the Property Rights Act Theory I. Property Rights Acts and Civil Legal Act Systems II. Property Rights Acts and Civil General Principles III. Property Rights Acts and Unlawful Disposition IV. Property Rights Acts and Good Faith Acquisition System V. Property Rights Acts and Unjust Enrichment System VI. Property Rights Acts and Reservation of Ownership System VII. Property Rights Acts and the Setting of Alienable Rights Section The Relationship Between Property Rights Publicity System and Property Rights Acts I. Under Publicity-against-ism (Intentionism), There Is No Such Thing as a Property Rights Act II. Property Rights Acts Are Not the Same as Publicity-as-a-requirement-ism (Formalism) III. The Publicity and Credibility of Property Rights Change Do Not Need to Be Based on the Theoretical Foundation of Property Rights Acts Property Rights Publicity Methods Chapter Three The Publicity of Immovable Property Rights: Registration Section Overview of Registration I. The History of Registration II. Registration Systems in Various Countries III. The Nature of Registration IV. Registration Capacity V. Registration Examination Models VI. Registration Claims VII. Registration Authorities VIII. The Validity Requirements of Registration IX. The Responsibility of Registration Authorities Section Types of Registration I. Classification of Registration II. Notice Registration III. Objection Registration Chapter Four The Publicity of Movable Property Rights: Possession (Delivery) Section Overview of Possession I. The Nature of Possession II. The Constitution of Possession Section The Publicity Function of Possession I. The Determination of Possession: A Gradually Vague Standard II. Conceptual Possession III. From Conceptual Possession to Conceptual Delivery IV. The Publicity Function of Possession (Delivery) Property Rights Publicity Effectiveness Chapter Five The Publicity Effect of Publicity Section Basic Issues of Publicity Effect I. The Meaning of Registration Effectiveness II. Overview of the Scope of Third Parties III. The Scope of Third Parties Who Cannot Oppose Without Registration IV. The Scope of Third Parties Who Can Oppose Without Registration Section Real Estate Double SalesComparison of Institutional Designs Under Intentionism and Formalism I. The Effectiveness of Real Estate Double Sales (Contracts) II. Both Second Purchasers Have Not Registered III. The Second Purchaser Obtains Registration Conclusion Main References