善意取得合同效力的立法解析与邏輯証成

• 영문명: Logical Justification and Legislative Analysis of Contractual Validity on Which Bona Fide Acquisition Based
• 발행기관: 한국재산법학회
• 저자명: 彭诚 信(팽성신, PENG Chengxin)
• 간행물 정보: 『재산법연구』財産法硏究 第26卷 第3號, 417~461쪽, 전체 45쪽
• 주제분류: 법학 > 법학
• 파일형태: PDF
• 발행일자: 2010.02.28

영문 초록

1. Introduction Why does the thesis talk about the contractual validity on which bona fide acquisition is based? There may be three main reasons as bellow: Firstly, there is a potential conflict between Contract Law and Real Law in P. R. China. According to article 51 of Contract Law, the obligatory contract is in pending effect. That is, the legal effect of the contract will be fixed by the ratification of true owner or after the unauthorized person obtains the right of disposal after making the contract. If the true owner ratifies the contract or the unauthorized person obtains the right of disposal after making the contract, the contract is effective or valid. In the situation, it is a normal transfer of property, no bona fide acquisition will happen. If the true owner does not ratify the contract or the unauthorized person does not obtain the right of disposal after making the contract, the contract is null and void. In this situation, the bona fide acquisition certainly will happen to bona fide transferee, but the acquisition is based on null and void contract. But article 106 of Real Law does not mention the legal effect of the contract which bona fide acquisition is based on. If the article is regarded as valid contract just as this did happen, conflict now appears between the two Laws. Secondly, the practical value of discussing the legal effect of the contract which bona fide acquisition is based on. The issue can never be avoided, for it concerns the protection of two parties of the contract. That is, in what way and in what degree the two parties can be protected due to the different legal effect of the contract. For example, if the transferee (bona fide party) gets the ownership but does not pay the price, in what way can the unauthorized transferor claim the price? If the contract is valid, he or she can easily claim the payment. But, if the contract is null and void, the unauthorized transferor is very difficult to find a reasonable way to protect his or her benefit. In the other aspect, if the object thing which the transferee (bona fide party) received has substantial defects, in what way can he or she claim compensation from the unauthorized transferor? We can easily conclude that the validity of the contract plays important role to protect the two parties. Thirdly, there were different legal arguments during the drafting Real Law about the issue in Mainland China. There were totally seven drafts about Real Law before the law came into force. The first draft regards the contract as valid or pending effect. The second, third, fourth, and fifth draft set the contract as valid effect. The sixth and seventh draft did not mention or intentionally avoid the legal effect of the contract. From above mentioned, we can understand that legal effect of the bona fide acquisition contract is really arguable issue in Mainland China. All the above‐mentioned disputes are keen on the legal effect of the bona fide acquisition contract. In order to resolve the issue, the thesis generalizes several correlative questions and purports to supply reasonable answers. First, what is the relationship between the legal effect of the contract and unauthorized disposition? Second, what is the logical relationship between the contract of bona fide acquisition and the general rule of transferring property right in Real Law of P. R. C.? Third, what is the relationship between public reliance of outward act and bona fide acquisition? Fourth, bona fide acquisition is original acquisition or derivative acquisition? The last part is to conclude the practical value of the validity of the bona fide acquisition contract. 2. The bona fide acquisition contract is valid based on the relationship between unauthorized disposition and the general theory of contract. According to the requirements of a civil juristic act shall be met based on the statute law in P. R. C. or general theory of contract law, unauthorized dispositi