Dipartite principle in the mechanism of the real right’s alteration in China
DOI:
https://doi.org/10.21638/spbu25.2023.306Abstract
The discrepancy of real right transfer mode decides the registered effects of real estate register (Confrontation or Confirmation Doctrine) and its examinational scope, further influencing the credibility and applied scope of the real estate register. The defined basis of the transfer mode is the attitude toward the juristic act of liability and juristic act of disposition, the causality and nonature of the juristic act of disposition. According to the research on the history, axiology and systematology, the transfer mode with the idealism has been cancelled in Chinese legislation, but there are still some exceptions. The enacting of the article 595 of the Civil Code is to distinguish the relationship between sales contracts and other contracts, which is unable to combine it with the article 598 and then deem the double effects of the sales contracts. The distinguish between juristic act of liability and juristic act of disposition in Chinese civil law has been confirmed by the juridical practices, which contained in the article 215 of the Civil Code. This distinguish is a summary of social and life experiences, particularly outstanding in the presale of house, the real estate register and the non-real time sales. In the real estate register, the consensus of both parties includes in the registration application, their signature means the agreement for the change of real right. The article 597 of the Civil Code stipulates the juristic act of liability’s effect when the seller has no right to dispose it. The distinguish principle in the theory of juristic act of real right, is not only beneficial to protect the third party, but can also clearthe legal relation in the complicated disputes. In this condition, some scholars still deny that the separation of juristic act of liability and juristic act of disposition is induced by the preconceived notions. Although the principle of abstraction has some advantages to protect the transaction safety and simplify the trading programs, no identified basis can be found in the examinational scope and related law when the authority handles the registration.
Keywords:
Chinese law, Dipartite principle, Creditor’s rights formalism, Real right formalism, Juristic act of liability, Juristic act of disposition, Causality, Real right transfer
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