Theory of Property: Centered on the Change of Property Rights

Author: Sun Peng
Publisher:
Publish Date: 2004-05-01
Features: This paper is divided into six chapters. , two chapters study the relationship between the publicity of property rights and the change of property rights, chapters three and four study the methods of publicity of property rights, chapters five and six study the effectiveness of publicity of property rights. Chapter one discusses the two models of the combination between the publicity of property rights and the change of property rights: the doctrine of publicity against and the doctrine of publicity as a requirement. This chapter describes the binary legislative opposition between the doctrine of publicity against and the doctrine of publicity as a requirement 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 binary legislative opposition exceeds its practical significance, and the doctrine of publicity against and the doctrine of publicity as a requirement are showing an increasing trend of convergence. On the one hand, in the legislation of publicity against, when selling specific goods, future goods, or others' goods, ownership does not transfer with the agreement of the intention. The legislation also allows parties to make special agreements on the time of transfer of the title of movable property rights to exclude the application of the intentionist rule; on the other hand, the doctrine of publicity as a requirement, as a formal requirement of property rights change, is becoming increasingly flexible, especially in the change of movable property rights, due to the introduction of concepts such as indirect possession and conceptual delivery, its "form" is no longer a form, and its legal effect is almost no different from that of publicity against. Nevertheless, it cannot be entirely ignored that there are differences between the binary legislation. Examining the doctrine of publicity against and the doctrine of publicity as a requirement from multiple angles and judging which is better in legislative policy still has value. The doctrine of publicity against helps in the convenience of transactions and maximally respects the transaction freedom of the parties, but it has a series of insurmountable contradictions in the institutional logic and is difficult to coordinate with relevant civil law systems, and it has fallen into great passivity in the application of law; the doctrine of publicity as a requirement fully conforms to the ideal of transaction security in modern society, and its institutional logic is coherent and natural, closely coordinated with relevant legal systems. Moreover, the doctrine of publicity as a requirement endows the publicity method with the formative power of property rights change, as compared to the counterforce of the publicity method under the doctrine of publicity against, it also represents a more sufficient publicity incentive for the parties to the property rights change, especially for the recipient party. The doctrine of publicity as a requirement not only provides "negative trust" protection for the third party of the property rights transaction that "without publicity, there is no property rights change" but also, in the case of publicity errors, gives the publicity method credibility, thus also providing "as long as there is publicity, we can trust the publicity" positive trust protection for the third party, so the doctrine of publicity as a requirement has a more complete publicity effect. From the historical evolution process of property rights publicity, the doctrine of publicity as a requirement was born to overcome the shortcomings of the doctrine of publicity against and has inherent advantages. If the legislative policy chooses the doctrine of publicity as a requirement, it cannot overlook the defects of sacrificing transaction speed and hindering transaction freedom of this doctrine, and it is necessary to take advantage of the strengths of the doctrine of publicity against and avoid the weaknesses of the doctrine of publicity as a requirement when designing specific systems to optimize the doctrine of publicity as a requirement. For this purpose, the following solutions can be chosen: one is to generally adhere to the doctrine of publicity as a requirement in the publicity of property rights change but adopt the doctrine of publicity against in individual property rights changes; two is to regard the publicity of movable property rights change as a recommended norm in the change of movable property rights and allow the parties to the transaction to exclude its application through expressions of intent.
Chapter two discusses the relationship between the publicity of property rights and the property rights act. The property rights act is a legal act that combines the expression of intent for property rights change with the method of publicity, and it has a distinct "two-dimensional" characteristic. From a subjective point of view, it is an expression of intent for property rights change; from an objective point of view, it is a method of publicity of property rights. Both the expression of intent and publicity are conditions for the establishment of the property rights act. The concept of the property rights act, the independence of the property rights act, and the causality of the property rights act together constitute the overall theory of the property rights act. Any claim that cuts off the connection among these three contradicts 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 publicity of property rights, delivery and registration are themselves neutral factual acts and do not necessarily carry the content of the intention for 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 causality of the property rights act, 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, the property rights act is also subject to the rules of effectiveness of legal acts, and it is often invalid due to "common defects" along with the creditor act. As for the relativization of causality, it is essentially not a revision of the property rights act theory but a comprehensive negation of the theory, playing the role of a "gravedigger." In terms of value, the function of the property rights act theory in realizing the clarity of transactions is only an illusion. In fact, the transaction life has become cumbersome and unbearable due to the intervention of this theory. The function of improving 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 within the legal framework and make transaction behavior conform to the requirements for the effectiveness of legal acts. As for the function of transaction security 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 security. Moreover, in the absence of property rights change, transaction security cannot be protected by the property rights act theory, so the so-called transaction security 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 the 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 the civil legal act system, the general principles of civil law, the doctrine of unauthorized disposition, the doctrine of good faith acquisition, the doctrine of unjust enrichment, the doctrine of reservation of ownership, and the establishment of alienable rights. The property rights act theory is not a natural law of logic, and the above systems can also be designed perfectly and accurately and operate more harmoniously and orderly without the property rights act theory. Regarding the relationship between the property rights act theory and the publicity of property rights, the method of publicity of property rights is a condition for the establishment of the property rights act. If the property rights act theory is recognized, then the publicity of property rights change is the publicity of the property rights act. However, there is no inherent necessary connection between the publicity of property rights and the property rights act. In fact, whether or not the property rights act theory is recognized, it has no impact on the publicity of property rights. It is only that under different legislative systems, the relationship between the publicity of property rights and the transfer (creation) of property rights is different. Under the intentionist system, the publicity of property rights and the transfer (creation) of property rights are separated, while under the formalist system, they are integrated. However, the degree of integration is different under the property rights formalist system and the creditor formalist system. Under the property rights formalist system, they are completely integrated. The property rights change act takes effect immediately upon publicity, and the effectiveness of the property rights change occurs according to the property rights act. Publicity is a sufficient condition for the effectiveness of property rights change, and when the cause act is invalid, it gives rise to an unjust enrichment claim; while under the creditor formalist system, the publicity of property rights is only a necessary condition for the effectiveness of property rights change, and it must be combined with the cause act to produce the effectiveness of property rights change. However, whether publicity is a sufficient or necessary condition for the effectiveness of property rights change, it is an effective condition for the effectiveness of property rights change. Since the property rights act is not the theoretical basis for the publicity of property rights, and the property rights act theory has many defects, we can completely construct a complete and scientific system of publicity of property rights without regard to the theory. In fact, whether it is the current civil legislation or the relevant civil legislation that is currently being carried out in our country, 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 state's special ledger according to legal procedures. Although it also reflects the macro-regulation and supervision of the state over 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 the one hand, registration is the effective requirement for the change of the ownership of immovable property; 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 useful components from different models based on the conditions of our country, and finally form an immovable property registration system with Chinese characteristics. According to this line of thought, the construction of the system of immovable property registration in our country 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 formalist 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 the capacity for registration. In principle, all legally established immovable property rights have the capacity for registration, and all rights involving the interests of third parties or the world should have the capacity for registration; 5. Have specialized administrative organs handle the affairs of immovable property registration; 6. Establish the right of registration application and the legal remedies for the right of registration application; 7. Clearly grant credibility to registration and improve relevant systems, such as the substantial examination of registration applications, penalties for false applications and registration, and state compensation for erroneous registration, to ensure that the credibility of registration does not excessively harm the rights of the 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 define the legal effects of priority registration, declaration registration, objection registration, and pre-registration, especially the scope of application, the occurrence, and the legal effects of pre-registration.
Chapter four discusses the publicity methods of movable property rights: possession (delivery). From a static point of view, the publicity method of movable property rights is possession, and from a dynamic point of view, 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 sense, but this intention does not need to be specific to the degree of possessing for 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, and accordingly, delivery is divided into actual delivery and conceptual delivery. Whether indirect possession or conceptual delivery, they lack 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, which not only cannot publicize the change of property rights externally but also, in fact, makes the difference between the doctrine of publicity as a requirement and the doctrine of publicity against no longer exist, and even makes the doctrine of publicity as a requirement less effective than the doctrine of publicity against. In fact, concepts such as indirect possession and conceptual delivery, which are seemingly confusing, were originally designed to mitigate the rigidity of the doctrine of publicity as a requirement. They explain the form required by the doctrine of publicity as a requirement in an infinitely broad way, so that in the end, it is no longer a form, resulting in 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 the doctrine of publicity as a requirement to adopt the doctrine of publicity against in some property rights changes.
Chapter five discusses the counterforce of publicity. The counterforce of publicity is manifested as "without publicity, no counterforce; with publicity, counterforce," and it plays a prominent role under the legal system of publicity against and also has an expression under the doctrine of publicity as a requirement. The so-called no counterforce does not mean that the effectiveness does not occur, but refers to the fact that the property rights change without registration has been completely effective between the parties, and in the relationship with the third party, it is not absolutely invalid, only the parties cannot claim the effectiveness of the property rights change to the third party. The third party can still recognize the effectiveness of the property rights change without registration, so the legal effect of "without publicity, no counterforce" can only occur when a third party appears and claims it. Regarding the scope of third parties, in Japan, which adheres to the doctrine of publicity against, there has been a transformation from the theory of unlimited third parties to the theory of limited third parties in case law and academic theory. The standards for limiting the scope of third parties include the so-called "theory of legitimate interest," "theory of effective transaction," and "theory of eat or be eaten." Specifically, the third parties that cannot counter without registration include various property rights acquirers, lessees of immovable property, creditors who directly obtain control over immovable property due to reasons such as seizure, distribution, joining, and application; while the third parties that can counter even without registration include unlawful actors, unlawful possessors, general creditors, as well as the nominal registrants and their assignees, assignees, and malicious third parties who violate good faith. In the legal system of publicity against, the counterforce of publicity is mainly discussed in the case of double sales of immovable property. To have a deeper understanding of the mechanism of the counterforce of publicity and further prove that the doctrine of publicity as a requirement is superior to the doctrine of publicity against, this chapter also specially examines the different regulatory models of the doctrine of publicity against and the doctrine of publicity as a requirement for double sales of immovable property. It is believed that the institutional design logic of the doctrine of publicity as a requirement is consistent, interlocking, and the systems are mutually supportive and complementary. While under the doctrine of publicity against, it is difficult to explain theoretically and difficult to operate in practice. Therefore, the legal regulation of the doctrine of publicity against to the double sales of immovable property is a failure, and starting from this point, the scientificity of the property rights change and publicity model of the doctrine of publicity against is questionable.
Chapter six discusses the credibility of publicity of property rights. The credibility of publicity refers to the fact that for the subjects who have made property rights changes due to reliance on false publicity, the publicized right relationship is treated as the real right relationship, the formal and real right relationships are separated, and independent legal effects are generated. The credibility of publicity can cure the defects of rights in property rights change, break the actual property rights relationships that exist, and make the acquisition of property rights out of thin air, thus fully protecting transaction security, but it is a sacrifice to the interests of the true rights holders. Since registration is a relatively complete publicity method, it is reasonable to grant credibility to registration, while it is questionable whether it is reasonable to grant credibility to possession as an incomplete publicity method. Whether it is advocating the credibility of registration or possession, certain conditions must be met, and certain post-event relief must be given to the true rights holders to prevent the sacrifice of their interests from being too cruel. In the interpretation of this transaction security protection measure, it should be integrated with the effectiveness of the act of unauthorized disposition and the doctrine of good faith acquisition. Unauthorized disposition is the factual premise for the operation of credibility and the application of the doctrine of good faith acquisition. The doctrine of good faith acquisition is a necessary logical conclusion of implementing the publicity principle of possession. Based on this understanding, the law should recognize the act of unauthorized disposition as effective but stipulate that the consequences of its effectiveness cannot counter good faith third parties, that is, it protects the transactional expectations of good faith third parties according to the publicity principle. If a good faith third party has already possessed the publicity means for property rights change, it will naturally obtain the corresponding property rights according to the valid transaction. In this way, good faith acquisition is actually a legal system that combines the effectiveness of legal acts and the publicity rules of property rights change. In nature, it belongs to the of property rights. While traditional civil law theory ignores the logical connection between good faith acquisition and the credibility of publicity, it treats good faith acquisition as original acquisition, leading to some deviation in the expression of the constitutive elements of good faith acquisition. This chapter introduces in detail the expressions of traditional theory while striving to correct the deviated content.