Research on the current pattern of property rights change in China 5

Mode of change in property rights.

There are two modes of change of property rights in the civil law system: the formalism of property rights and the doctrine of creditor's rights. The former is represented by Germany and Japan, and the latter is represented by France.

When China began to revise the civil law at the end of the Qing Dynasty, because the civil law system Germany had the highest legislative technology, with the help of Japanese jurists, the civil code inherited from Germany was compiled.

After the collapse of the Soviet Union, China's civil law returned to the right path, and a socialist legal system was formed under the influence of Germany and Japan - so the changes in property rights were also mainly influenced by Germany.

The German formalist change model of property rights says that the creditor's right contract cannot have the effect of a change in real rights, and the real right contract must exist and be actually delivered, and the immovable property needs to be registered before it can be effective.

The French model of change of property right doctrine says that the change of the property right of the debt occurs from the agreement of the two parties to the change of the real right, and even if the actual item cannot be delivered, it does not affect the change of the property right, regardless of whether the real right is transferred or not, and if the contract is signed with someone else to sell the goods, it is an invalid contract. However, there are also special circumstances, such as pre-sale houses, where there is no actual property right at the time of the conclusion of the contract, so there is no need to transfer, and after the house is completed and registered, if the house is sold for two times, it is not an invalid contract mentioned above.

Germany and France have finished speaking, so what is the model in China, some people call it creditor's rights formalism, which can be regarded as absorbing and drawing on all the essence of the civil law system, and separating the property contract from the creditor's rights contract, but there are no such two contracts in practice, so the property contract is finally converted into a process and obligation that needs to be registered.

We usually understand the dichotomy of property and debt, which is what it means, even if the contract is signed without the right to dispose of it, the property right does not change but does not affect the validity of the creditor's contract, and as for the failure of the creditor's rights contract, then you have to claim compensation from the other party.

Including: 1. Changes in property rights due to legal documents of the people's courts and arbitration commissions, 2. Changes in property rights due to expropriation decisions, 3. Changes in property rights due to inheritance or bequest, and 4. Changes in property rights due to legal construction and demolition of houses. "Article 229 of the Civil Code stipulates that if a real right is established, altered, transferred or extinguished due to the legal documents of the people's courts or arbitration institutions or the expropriation decisions of the people, etc., it shall take effect when the legal documents or expropriation decisions take effect.

Article 230 stipulates that if the right to search for property is obtained by inheritance, it shall take effect from the beginning of the inheritance. Article 231 stipulates that where a real right is created or extinguished as a result of a factual act such as the lawful construction or demolition of a house, it shall take effect when the factual act is completed.

Legal analysis: The changes in property rights based on legal acts mainly include the following situations:

1. The property rights are changed based on the legal acts of both parties, for example, Huizheng obtains ownership due to a sale, barter, or gift contract; or by entering into a contract with others to create other property rights, such as mortgages, pledges, etc.; or extinguish the property right due to the expiration of the term of existence of the property right agreed in the contract.

2. A property right arises based on a unilateral legal act, e.g., by creating a property right by a will or abandoning a property right.

Legal basis: Civil Code of the People's Republic of China

Article 595:A sales contract is a contract in which the seller transfers ownership of the subject matter to the buyer and the buyer pays the price.

Article 657:A gift contract is a contract in which the donor gives his property to the donee free of charge, and the donee expresses his acceptance of the gift.

The change of property rights in China adopts the legislative principle of the formalism of creditor's rights, supplemented by the doctrine of meaning.

Legal basisArticle 209 of the Civil Code stipulates that: "The creation, alteration, transfer and extinction of real estate rights shall take effect upon registration in accordance with law; Without registration, it shall not take effect, unless otherwise provided by law. The ownership of natural resources that belong to the State in accordance with the law may not be registered.

As can be seen from this provision, the publicity procedure for registration is an effective requirement for a change in real estate rights.

Article 224 stipulates: "The creation and transfer of movable property rights shall take effect upon delivery, unless otherwise provided by law." "The publicity procedure for delivery is an effective condition for a change in movable property rights.

Article 226 stipulates: "The creation, alteration, transfer and extinction of real rights in ships, aircraft and motor vehicles shall not be used against bona fide third parties without registration." "Because ships, aircraft, and motor vehicles per acre are often worth a large amount of movable property in a transaction, registration is only an adversarial effect, not an effective requirement for movable property rights.

Article 333 stipulates: "The right to contract for the management of land shall be established when the contract for the right to contract for the management of land takes effect. Local people at or above the county level shall issue land contracting and management certificates, forest rights certificates, and grassland use rights certificates to land contracting and management rights holders, and register and make a register to confirm land contracting and management rights.

On the other hand, even if the land contracting and management right is not registered, as long as the land contracting and management right contract does not violate the provisions of the law, the land contracting and defense management right will take effect, and this kind of change in property right is a typical example of the agreement between the parties that can take effect.

Article 374 stipulates: "The easement shall be established when the easement contract comes into force. If the parties request registration, they may apply to the registration authority for the registration of easements; Without registration, it is not allowed to confront a bona fide third party.

This article explains that the establishment of an easement is premised on the agreement of intent between the parties, and that registration is only effective against bona fide third parties, not an effective condition for the establishment of an easement.

Changes in property rights based on legal acts, such as legal and criminal acts based on sales contracts, gifts and other legal and criminal acts, resulting in changes in property rights. The civil law regards the changes in the property rights of Soyou based on legal acts, especially the changes in property rights caused by the legal acts (contracts) of the two parties, as the key objects of regulation.