First, the rules of bona fide acquisition of property law

1. The subject matter includes movable property and immovable property.

The subject matter acquired in good faith includes movable property and immovable property. The only difference between the two is that the transferee has reason to believe that the disposer of property rights has the right to dispose of it for different reasons-the former comes from the credibility of chattel possession and the latter comes from the credibility of real estate registration.

2. The assignor has no right of disposal.

If the transferor has the right to dispose, it constitutes a derivative acquisition to the transferee, not a bona fide acquisition. The transferor's right of unauthorized disposition includes two situations: no ownership and limited ownership.

3. Transferee based on paid legal act.

First of all, bona fide acquisition can only occur on the basis of legal acts such as sales contracts, and it will not occur on the basis of legal succession, company merger and other non-legal acts. Secondly, the legal act here should have the nature of "property transaction", that is, the transferee must pay the consideration and get paid. Paid refers to the transferee's paid transfer at a reasonable price, including reciprocity, buying and selling, excluding free ways such as gift and inheritance.

4. When the transferee handed over the property, it was in good faith.

"Goodwill" in civil law refers to ignorance. That is, when the transferee and the person without the right to dispose of the civil act, the third party does not know that the other party has no right to dispose of the subject matter. Acquisition in good faith is immediate acquisition, so in principle, the time point in good faith should be the time when the legal act takes place, that is, the time of property transfer. As for whether you know it afterwards, it does not affect the composition of bona fide acquisition.

5. The transferred property has been delivered or registered.

Second, the scope of application of bona fide acquisition system

1, movable property

In traditional civil law, bona fide acquisition usually refers to bona fide acquisition of movable property. Movable property refers to "everything except land and its fixtures, such as books, paintings, jewelry and bearer securities (such as tickets)". For bills, according to Article 12 of the Bill Law, except for those who "obtained bills by fraud, theft or coercion or knew that there was a front row situation", those who paid the consideration in good faith can obtain bills in good faith, and this rule applies to other securities by analogy; With regard to the chattels such as ships, aircraft and motor vehicles that adopt the registration confrontation system, Article 932 of the German Civil Code recognizes the acquisition of unregistered ships in good faith. Chinese scholars have different opinions on whether bona fide acquisition can be applied. Professor Wang Yi believes that this kind of registered movable property has credibility, and there is no problem of bona fide acquisition. Without registration, there is no "effectiveness against bona fide third parties", and bona fide transferee can obtain the ownership of movable property because the ownership enjoyed by the owner is not effective enough.

2. Real estate

The system of bona fide acquisition is applicable to real estate, but it does not include state ownership and collective ownership. Some scholars argue that China has strict requirements on the effectiveness of real estate registration, and real estate-related issues can be adjusted based on the publicity effect of registration. In principle, there is no applicable space for bona fide acquisition of real estate; Some scholars have raised objections, arguing that when the registration records are inconsistent with the parties' intentions, and the registration book does not reflect real-time changes in property rights, the registration right has no right to dispose of it, and bona fide acquisition has applicable possibilities.

Third, the value of bona fide acquisition system.

The essence of bona fide acquisition system is to sacrifice the property right of the real obligee, so as to ensure that the bona fide assignee can obtain the ownership and other property rights, aiming at coordinating the maintenance of ownership and the convenience of transaction, and striving to achieve a "dynamic" and "static" balance.

In this regard, it mainly includes the theory of immediate prescription, the theory of external image of rights, the theory of legal authorization and the theory of possession protection, all of which advocate that the system of bona fide acquisition aims at protecting transaction security; Professor Xie Zaiquan, a scholar in Taiwan Province, argues that the theoretical basis of bona fide acquisition system is the security and convenience of transactions. However, to protect property order, we should also take static protection of property ownership, that is, we need to weigh the values of the two kinds of property in order to recognize the bona fide acquisition of property transactions. German, French, Japanese, China and other countries give consideration to the "static security" and "dynamic security" of property ownership, and take a positive "golden mean" stance on bona fide acquisition. The subject matter acquired in good faith includes movable property and immovable property. The only difference between the two is that the transferee has reason to believe that the disposer of property rights has the right to dispose of it for different reasons-the former comes from the credibility of chattel possession and the latter comes from the credibility of real estate registration.

Legal objectivity:

Article 9 of the Property Law: The establishment, alteration, transfer and extinction of the real right of immovable property shall take effect after being registered according to law; Without registration, it will not take effect, except as otherwise provided by law. Natural resources owned by the state according to law may not be registered. Article 14 The establishment, alteration, transfer and extinction of the real right of real estate that should be registered according to law shall take effect when it is recorded in the real estate register. Seventeenth real estate ownership certificate is the proof that the right holder enjoys the real estate right. The items recorded in the certificate of real estate ownership shall be consistent with the real estate register; If the records are inconsistent, unless there is evidence to prove that the real estate register is indeed wrong, the real estate register shall prevail. Principle: ① Unless otherwise provided by law, the change of real property right based on legal act is based on registration. Its formula is: effective legal act+disposition right+registration-property right change; ② Its scope of application includes: abandonment of real estate rights (ownership, mortgage, construction land use right), sale of real estate (Article 9 of the Property Law), gift of real estate (Article 9 of the Property Law), assignment and transfer of construction land use right (Article 139 of the Property Law) and establishment of real estate mortgage (Article 139 of the Property Law). ③ The time point of property right change is the date of initial registration or change of registration recorded in the real estate register, not the real estate license (the real estate register for construction land is the legal basis of property right change, and the ownership certificate (real estate license and construction land use right certificate) is not the basis of property right change, but only the preliminary proof of enjoying the real estate right. Article 127 The right to contracted management of land shall be established when the contract for contracted management of land comes into effect. The local people's governments at or above the county level shall issue the land contractual management right certificate, forest right certificate and grassland use right certificate to the land contractual management right holder, and register them to confirm the land contractual management right. Article 129 Where a party requests registration for the exchange or transfer of the contracted management right of land, it shall apply to the local people's government at or above the county level for the registration of the change of the contracted management right of land; Without registration, you may not be able to fight well-intentioned third parties. Article 158 An easement shall be established when the easement contract comes into effect. If registration is needed at that time, you may apply to the registration authority for easement registration; Without registration, you may not be able to fight well-intentioned third parties. Exception (1) The land contractual management contract comes into effect, and the land contractual management right is established without registration. However, the unregistered land contractual management right has no effect against bona fide third parties (Articles 127 and 129 of the Property Law); (2) The easement establishment contract takes effect, and the easement is established without registration. However, unregistered easements may not be used against bona fide transferees of easements (Article 158 of Property Law).