중화인민공화국 물권법(2007년)의 물권변동에 관한 연구

• 영문명: A Study on the real right alternation in the Real Right Law of the People's Republic of China(2007)
• 발행기관: 한국재산법학회
• 저자명: 김성수(KIM，Seong-Soo)
• 간행물 정보: 『재산법연구』財産法硏究 第27卷 第1號, 319~355쪽, 전체 37쪽
• 주제분류: 법학 > 법학
• 파일형태: PDF
• 발행일자: 2010.06.30

영문 초록

In this study we research the real right alternation and transfer system of the Real Right Law in the Peoples Republic of China(2007)(hereafter referred to as real right law, unless otherwise provided). It is also the second part of our previous study, which treated important but a little theoretical problems as to so-called juridical act of real rights and the real rights transfer system in the chinese civil law，mainly focused on its various doctrines and its arguments. But now we will cover the contents of the real rights altenation and its adoption in the chinese law，focusing on the content of legal texts after enactment. After a brief survey of the legislative process and the drafts, we enter the two broad questions accoding to the legal text and its meaning, in some cases, depending on its desirable and logical order. To begin with, the real right law provides the principle of distinction between the result of property rights and its causal acts(articles 15). Next, as to the real rights transfer systems, the law adopts，according to the dominant doctrine，the creation mode of publication，more precisely, the coexistence system of transference will and publication modes. According to the present law, in transferring of immovable property rights caused by juridical acts, in principle, are required an juristic act and its registration (articles 6, 9，14，23 etc.). For example，the creation, alteration, alienation or termination of the real right of a realt right shall be subject to registration in accordance with law(art. 6(1)). On the other hand, in the movable property，an juristic act and its delivery are required(art. 23), which says, unless it is otherwise prescribed by any law, the creation or alienation of the real right of a chattel shall come into effect upon delivery. But in some cases as ships, aircraft etc., is required the registration of movables. The creation, alteration, alienation or termination of the real right of any vessel, aircraft or motor vehicle and so on may not challenge any bona fide third party if it is not registered(art. 24). Nevertheless, there are some exceptions against this principle, which takes the mode of defense of publication(articles 24，129, 158，and 189). We can give some examples like the right to the contracted management of land(art. 129), the easement(art. 158) and the mortgage of the chattels(art. 189) etc. Finally, the transfer caused by non-juridical acts, such as inheritance，judicial decision, etc.(articles 28 to 30) don't require the registration, which is only required on its disposal. Despite this study, it is needed more study about its related topics, such as, unauthorized disposition, unjustified enrichment and bona fide acquisition, inopposability to a third person in good faith in case of a null or voidable juristic act etc，for our systematic compairison of the real rights law between Korea and China.

목차

Ⅰ. 들어가며

Ⅱ. 물권변동 일반론

Ⅲ. 법률행위에 의한 물권변동

Ⅳ. 법률행위에 의하지 아니한 물권변동

Ⅴ. 나가며

키워드

중화인민공화국 물권법(2007) 물권변동 법률행위로 인한 물권변동 법률행위에 의하지 아니한 물권변동 부동산등기 동산인도 Real Rights Law of the Peoples Republic of China(2007) Real rights alternation Juristic act of real rights Creation mode of publication Defensible mode of publication Coexistence System of alternation Will and Publication Modes Real Property Registration Chattel Delivery