Real estate refers to tangible property that cannot be moved or will change its nature and damage its value after moving, including land and its fixtures, including material entities and their related rights and interests. Such as buildings and plants growing on the land. real estate
Land that cannot be moved according to natural nature or legal provisions, land fixtures, land products that have not been separated from the land, and other things that cannot be separated because of natural or human attachment to the land. Including material entities and rights and interests that depend on material entities. Specification for real estate appraisal: real estate (real estate), land, buildings and other things fixed on the ground, including physical objects and rights and interests relying on physical objects. Real estate appraiser qualification examination book: Real estate refers to land, buildings and other land fixtures, which is a combination of physical objects, rights and interests and location.
Edit the characteristics of this paragraph
Natural characteristics
The characteristics of real estate as a natural thing. 1, immovability: also known as positional fixity, that is, the geographical position is fixed. 2. Individuality: also known as uniqueness, heterogeneity, heterogeneity and uniqueness, including differences in location, utilization and rights. 3. Durability: also known as long service life, the land will not be lost or destroyed due to use or placement, but will increase in value; This building has a long service life. The land in China has a useful life. 4. Limited quantity: also known as limited supply, limited total land and flexible economic supply.
Socio-economic characteristics
Reflect the characteristics of social and economic relations between people. 1, with great value: compared with general commodities, real estate has higher unit price and total price. 2. Use diversity: also known as the possibility of use competition, transformation and coexistence, mainly refers to the characteristics of open space. From an economic point of view, the priority of land use is: commerce, office, residence, industry, cultivated land, pasture, pasture, forest and wasteland. 3, involving a wide range: also known as mutual influence, real estate involves all aspects of society and is easy to have an impact on the outside world. It is called externality in economics, which can be divided into positive externality and negative externality. 4. Limited rights and interests: caused by extensive involvement. The government mainly manages by setting four privileges: control right, expropriation right, taxation right and confiscation right. 5. Difficult to realize cash: also known as weak liquidity and poor liquidity, mainly due to high value, immovability and easy restriction. The main factors affecting the realization are the universality, independent use, value, separability, development degree and location market situation of real estate. 6. Value preservation and appreciation: appreciation means that the value of real estate increases with time due to the inability to increase the area, the continuous improvement of infrastructure such as transportation and the increase of population. Value preservation means that real estate can resist inflation.
Edit the properties of this paragraph.
A form of property division. Because of the great influence of real estate on people's lives, it has the characteristics of persistence, scarcity, invisibility and immovability, and many countries have special regulations on this. In the civil substantive law, the change of real estate rights, such as taking real estate as the subject matter of sale or establishing mortgage, must go through certain registration and publicity procedures, otherwise it will not take effect; In the civil procedure law, disputes caused by real estate should generally be under the jurisdiction of the court where the real estate is located. For example, the General Principles of the Civil Law of People's Republic of China (PRC) and the Civil Procedure Law of People's Republic of China (PRC) all have similar legal provisions. Real estate boom cycle
Edit the definitions of movable property and immovable property in this paragraph.
Definition of movable property and immovable property in various countries
Different countries have different definitions of movable property and immovable property. At present, the international community does not simply define movable property and immovable property by whether it can be moved or not, but comprehensively considers the legal elements of property value and property right change. Such as airplanes, ships, etc. , internationally defined as real estate. Because of its huge value, it must be registered with the administrative organ when handling the change of property rights. Things in civil law refer to material objects that exist outside the human body, can meet people's social needs and can be actually controlled or dominated by people. According to different standards, things can be divided into movable property and immovable property, circulating property and restricted circulation property, specific property and category, subject and subordinate property, separable property and inseparable property, original property and breeding property, subject property and immovable property.
Main objects, etc.
Division of movable property and immovable property
Among them, the division between movable property and immovable property is based on whether the property can be moved and whether its value is damaged by the movement. Movable property refers to something that can be moved without damaging its value or use. Real estate refers to something that cannot be moved or that will damage its value or use. Things like computers, televisions and desks are usually stationary, but they are not real estate. Because these things can be moved, they will not depreciate because of movement. These things don't move in reality because you don't want to, not because you can't. So, your computer, TV, desk and so on are all movable property. Movable property and immovable property are sometimes interchangeable. For example, the fruit on the fruit tree in the orchard, hanging on the fruit tree is real estate, and picking it becomes movable property. Steel, cement, etc. They are all chattels, but when they are used to build houses, they become real estate. real estate
Edit this paragraph for goodwill.
Research on bona fide acquisition of real estate
Based on the theory of appearance of rights, this catalogue analyzes the negative theory and positive theory of bona fide acquisition of real estate, and holds that in modern society, bona fide acquisition of real estate has more basis than movable property. By studying the legislation of advanced countries, it is considered that France, Japan and other countries have not recognized the bona fide acquisition of real estate, which is actually related to the formal review system of real estate registration. China implements substantive examination system, and bona fide acquisition of real estate has its institutional basis in China. The system of bona fide acquisition is an important system in the civil law system since modern times, which is of great significance for protecting the legitimate rights and interests of the third party who obtains property in good faith and maintaining the dynamic security of trading activities. Prevent so-called illegal real estate
The system of bona fide acquisition of movable property is produced and developed with the expansion of wealth and goods circulation and in response to the economic requirements of circulation safety. The system of bona fide acquisition originates from the principle of hand protection in ancient Germanic law and is the product of economic life. It has experienced a long period from ancient times, the Middle Ages to modern times and even modern times. Its system creation, precedent and theory have changed repeatedly, and it has been established in many market economy countries, playing a role in ensuring circulation safety. However, whether the bona fide acquisition system is also applicable to the real estate field has different legislative provisions in various countries, and scholars have different opinions on theoretical research.
Theoretical debate and analysis on bona fide acquisition of real estate
1. Negative theory. At present, Chinese scholars generally believe that the system of bona fide acquisition is only applicable to the field of movable property. The so-called bona fide acquisition means that "after the transferor who has no right to dispose of the movable property of others illegally delivers it to the buyer, the buyer obtains the movable property in good faith, that is, obtains the ownership of the movable property, and the original movable property owner may not ask the buyer to return it." For real estate, "because registration is the way of publicity, the owner will not be mistaken in the transaction", "because of the establishment of the real estate registration system, it is impossible for a third party to defend on the grounds of not knowing the right status of real estate." Therefore, after the establishment of the real estate registration system, "the principle and rules of bona fide acquisition can no longer be applied in the field of real estate law." Even if there is "the necessity of obtaining real estate with movable property in good faith, it is only above a very small number of unregistered real estate such as illegal buildings." For "registered real estate registration errors should be solved through the principle of public trust or registration correction procedures, and bona fide acquisition is not applicable." 2. Say for sure. Scholars with positive views believe that bona fide acquisition of real estate should be recognized. They think that Article 89 of the Opinions of the Supreme Court on Several Issues Concerning the Implementation of the General Principles of the Civil Law of People's Republic of China (PRC) stipulates that * * * and * * have property acquired in good faith, including * * * and * * have real estate acquired in good faith. It is believed that "when buying, selling and accepting real estate, if the buyer is sincere and innocent, he will take the position of sacrificing the interests of others and maintaining the trading order and rules to confirm the validity of the buying and selling relationship." Moreover, in modern society, "no matter how independent and perfect the modern real estate registration system is, it is still impossible to completely avoid the inconsistency between the content of registration rights and the actual state of rights", so there is the possibility that real estate has no right to dispose of it. Therefore, it is unfounded to exclude the application of bona fide acquisition of real estate on the grounds that "the parties to the transaction will not mistakenly think that the owner of real estate is trading with the person with the right to dispose", and it is unfair to the bona fide third party who believes in registration and publicity and obtains real estate from the person without the right to dispose. Although the negation theory opposes the bona fide acquisition of real estate, the reason for their opposition is not real estate.
Same. There are two representative views of negation. The representative of the first view is Mr. Liang Huixing. They believe that "based on the credibility of the registration of property rights, even if the registration is wrong or omitted, the interests of bona fide third parties trading under the registered name because they believe that the registration is correct are still protected by law." From this point of view, the bona fide third party trusts the registration of real estate and trades under the registered name, even if the registered name is not the real obligee, it also obtains the ownership of real estate. However, it is obviously illogical for them to deny that the real estate was acquired in good faith. Regarding the theoretical basis of bona fide acquisition system, Mr. Liang Huixing once said: "Mr. Zheng Yubo interpreted the theoretical basis of bona fide acquisition system as a special provision of law, which is a correct explanation." At the same time, he believes that "the system of bona fide acquisition is based on the public trust effect of possession, and there is nothing wrong with it." The public trust effect of possession, that is, according to the publicity effect of the change of real right, should be presumed as the owner of movable property. From this point of view, Mr. Liang Huixing agrees with the theory of legal empowerment and the theory of right manifestation. Starting from the theory of right appearance, it is often easy to draw the conclusion that real estate can also be acquired in good faith, while the theory of legal empowerment is likely to draw the opposite conclusion. This seems to explain the first viewpoint of negative theory. In theory, it has actually acknowledged the bona fide acquisition of real estate and denied the contradiction of bona fide acquisition of real estate. However, on the issue of bona fide acquisition of real estate, they firmly adhere to the view of legal empowerment and hold a negative view. However, if we simply say that the bona fide acquisition system is only applicable to movable property, but not to real property, it is because of the special provisions of the law, which obviously violates the internal logic of the legal system and is not conducive to the due research of China's property law. The second negative view is represented by Mr. Sun. They believe that the existence of the real estate registration system and the fact that the real estate registration book is open to all people make it impossible for anyone to defend the transaction defects in the real estate field in good faith that they don't know or shouldn't know. This view completely opposes the principle of publicity and credibility of real rights and the bona fide acquisition of real estate. They believe that according to the principle of publicity and public trust, even if the relationship between publicity and rights is inconsistent, the transferor of the subject matter has no right to dispose of it, and the transferee who trusts publicity in good faith can still obtain property rights. In fact, the presumption of publicity has the significance of determining the subjective psychological state of the parties. If the registered name or possessor is presumed to be the real obligee, then the third person who trusts the registration or possession is presumed to be in good faith and without fault. The standard of the principle of publicity and public trust is objective, and the standard of bona fide acquisition is subjective. Therefore, in the field of real estate, it is impossible for a third party to defend the true state of rights that it does not know or should not know, because registration is the way to publicize real estate. Therefore, the principle of publicity and public trust can be applied to real estate, while the system of bona fide acquisition is not applicable to real estate. However, in real life, the inconsistency between the content of real estate registration right and the status of real right is very complicated. To sum up, the main reasons for this inconsistency are: (1) wrong registration or wrong cancellation due to the fault of the registration authority; real estate
(2) legal changes other than registration, such as the legal heir obtaining the right of inheritance or the heir obtaining the real estate other than the share of inheritance and handling the inheritance registration; (3) The sales contract is invalid or cancelled, but the registration has not been cancelled; (four) to obtain the real right of immovable property according to law, such as land expropriation, but not yet registered; (5) Real estate * * * is related to * * *, and the real right of real estate is only registered in the name of one or part of * * *. Under the above circumstances, it is often difficult for the third party to know the true state of rights. If the third party doesn't know or shouldn't know the real right status, it should trust the real estate registration in good faith and conduct real estate transactions under the registered name. At this time, denying the bona fide acquisition of real estate is obviously not conducive to the protection of the interests of bona fide third parties. From this point of view, the defect of this view lies in turning a blind eye to the wrong registration that already exists in real life and will continue to occur. Although scholars with positive views are willing to admit the bona fide acquisition of real estate, there are differences on the basis of bona fide acquisition of real estate. Some scholars believe that "because the publicity method of real estate property right change is registration, therefore, in real estate transactions, both parties must register the change of ownership according to the regulations, so there is no possibility for the owner of real estate right or the owner who has no right to dispose of the ownership of real estate, and there is no necessary premise for applying the bona fide acquisition system." Obviously, it is an exception for * * * and * * to acquire real estate in good faith. Some scholars believe that the premise of bona fide acquisition of real estate, that is, the registration record of real estate rights is inconsistent with the status of real rights, is "because the registration review in all countries in the world today is only a formal review." Although the author also holds a positive view, he does not agree with the above view. This paper holds that in China, where real estate registration is substantially examined, bona fide acquisition of real estate is not only applicable to all real estate in * * *, but also applicable to all registered real estate.
Edit the theoretical basis of this paragraph.
The theoretical basis of bona fide acquisition of real estate The system of bona fide acquisition originated from the principle of "protecting hands with hands" in ancient Germanic law. According to this principle, possession is the expression of real right. The possessor of chattel is presumed to be the possessor of chattel, and the person who has the right to chattel must also show it by possessing the subject matter. Therefore, when the obligee does not possess the property, the effectiveness of his rights will be weakened. A person who delivers his movable property to another person without authorization can only ask the other person to return it. If the other party transfers its movable property to a third party, it can only ask the other party to compensate for the loss, but not the third party to return its movable property. The principle of "protecting hands with hands" pays attention to the representation of rights and regards the representation of rights as the representation of rights. Although this is closely related to the lack of ownership of the ancient Germanic law concept, it adapts to the development of commodity economy and the objective need to protect transaction security, thus showing its strong vitality. Later, German civil law and Swiss civil law basically adopted the right appearance standard based on the principle of "protecting hands with hands", and regarded real estate registration and chattel possession as the legal publicity forms of real rights, and judged the correctness of real rights by the presumption of probability, rather than defining the correctness from an objective and true perspective. Although the principle of "protecting hands with hands" does not include the concept of transaction security, the theory of right appearance has gradually developed into the mainstream theory on the basis of absorbing the concept of possession as the "coat" of rights and the "good faith" elements of Roman law. The real estate recourse system in Germanic law and its restrictive basis are deeply rooted in the inherent publicity thought of Germanic people, and the modern manifestation of this thought is the bona fide acquisition system. According to the principle of property right publicity, the correct essence of property right is the form of legal recognition, that is, the property right recorded in the real estate register and the property right represented by the fact of movable property possession are correct property rights, which is the correct presumed effect of the right of property right publicity. According to the presumed validity, when a bona fide third party trusts the expression of real estate registration or chattel possession, even if its expression is inconsistent with the substantive rights, it will not have any influence on the bona fide third party who trusts the expression, and the property right obtained by the bona fide third party is protected by law. The theory of right appearance was born at the request of modern capitalist economic development to protect transaction security. It cuts off the internal factors of the parties, so that the internal situation between the parties will not overflow and affect and damage the third party, and takes the external form of rights and legal relations as the protection standard of the interests of the relative person. real estate
The premise of bona fide acquisition system is the emergence of ownership concept. Due to the separation of possession and ownership, bona fide acquisition system has its realistic basis and significance. If the possessor and the owner are combined into one, there is no room for the application of bona fide acquisition system. With the development of conceptual ownership, the phenomenon of separation of possession and ownership is increasing day by day, and the system of bona fide acquisition is also developed to protect the legitimate interests of bona fide third parties and transaction security. The unification of the publicity methods of property rights in modern countries provides the basis for the application of bona fide acquisition system. "General Principles of German Civil Law" once said, "In chattel transactions, it is very important for bona fide acquirers to ensure the security of acquisition. In real estate, trust in the fairness of the register is protected by law. In movable property, instead of the register, the transferor's possession and possession constitute the basis of goodwill that should be protected. " Therefore, possession and registration have the function of representing rights. Possession has the function of representing rights because it is "inseparable from the actual situation in appearance." Therefore, "based on this possibility, possession has the appearance that facts dominate the subject matter, so it should have its own rights." However, with the development of modern society and market economy, the ownership of ideas has been further developed, leading to the separation of possession and ownership, which challenges the proposition that possession usually represents ownership in modern times. The frequent separation of possession and this right makes possession as a means of publicity of movable property insufficient, and it is impossible to identify the possessor who actually controls the movable property as the owner of the movable property, especially in the case of ownership retention and transfer guarantee, it is even more suspicious to identify the possessor as the owner of the movable property by the appearance of possession. Real estate, which makes the foundation of bona fide acquisition system shaken. The principle of publicity, which clearly expresses the ownership of ideas through a certain shape, has actually been abandoned in the real right of movable property, so that the shape can no longer shoulder the function of indicating the existence of real right. In this way, the principle of public trust derived from the principle of openness loses its premise. In the field of real estate, the above situation does not exist. Due to the establishment and improvement of the real estate registration system, the registration of real estate is unified by the government, which ensures that the rights recorded in the real estate register are consistent with the real rights, so the public can trust that the rights recorded in the register are real rights. Because the possession of movable property can generate credibility because of its probability, real estate registration, as a way of publicity, is far less inconsistent with actual rights than movable property, so it has higher probability and thus more credibility. Therefore, when a bona fide third party makes an artificial transaction under the registered name because it trusts the records in the real estate register, even if the registration is separated from the rights, the bona fide third party can also obtain its benefits, unless another person raises an objection to the registration authority and has recorded it in the register.
Edit the institutional basis of this paragraph.
Institutional basis of bona fide acquisition of real estate: the legislation of developed countries has different provisions on bona fide acquisition of real estate. Article 2279 of the French Civil Code stipulates: "When movable property is involved, possession is equivalent to ownership certificate." It can be seen from this article that bona fide acquisition in French law only applies to movable property, because only movable property is applicable to possession and ownership according to the right of possession. Article 932 of the German Civil Code stipulates: "Even if the property does not belong to the transferor, the transferee can become the owner due to the transfer stipulated in Article 929, except that the ownership was not obtained in good faith according to the above provisions." Article 929 stipulates: "The transfer of ownership of movable property requires the owner to deliver the property to the transferee, and both parties have an agreement on the transfer of ownership. If the transferee owns the property, it only needs to transfer the ownership consent. " Although article 932 of the German Civil Code does not explicitly point out that bona fide acquisition is only applicable to movable property, the article 929 it refers to clearly defines things as movable property, and article 932 stipulates that it is under "loss and loss of ownership of movable property". There are similar provisions in Japanese Civil Code 192, Swiss Civil Code 708, China Taiwan Province Civil Code 80 1 and American Uniform Commercial Code 2403, which restrict the application of bona fide acquisition to movable property. Therefore, some scholars in our country assert: "The civil legislation of various countries stipulates that only movable property transactions are protected according to the bona fide acquisition system, and the bona fide acquisition system is not applicable to real estate transactions." However, Article 892 of the German Civil Code stipulates that land rights can be obtained on the basis of believing in the credibility of land registration. In fact, it breaks through the limitation that bona fide acquisition is limited to movable property, and extends the application scope of bona fide acquisition to real estate. Switzerland applies the bona fide acquisition system to all registered immovable property. Article 973 1 of the Swiss Civil Code stipulates: "Anyone who trusts the registration of the real estate register in good faith and thus obtains ownership or other rights shall be protected." Article 43 of the Land Law of Taiwan Province Province also stipulates: "Registration according to this law has absolute effect." Registration has absolute effect, in order to protect the third party and give absolute credibility to the registered items, so that when the third party obtains land rights because of trust in registration, even the registration reason will be invalid or revoked, and the real obligee may not use it against the third party. Moreover, after years of comprehensive review, Taiwan Province Province completed the draft partial amendment of civil law property rights in March 1999, adding 75 articles, deleting 15 and modifying 127 compared with the original article 2 10, with great changes. Property right becomes real estate.
On the other hand, in order to protect the rights and interests of bona fide third parties, maintain the security of transactions, and clearly stipulate the bona fide acquisition of real estate, the second paragraph of Article 759 stipulates: "If a bona fide third party who trusts the registration of real estate has registered the change of real right in accordance with legal acts, the effect of the change will not be affected by the invalidation or revocation of the original registration." It can be seen that the legislative provisions on bona fide acquisition of real estate in various countries are not as asserted by some scholars. However, whether bona fide acquisition is applicable to real estate, and why are there such differences in national legislatures? The main reason is that different countries have different real estate registration systems. Most States in France, Japan and the United States implement the real estate deed registration system, which has the following characteristics: (1) formal examination. The registrar only makes a formal examination of the application for registration and does not ask whether there are any defects in the rights contained in the contract. (2) Registration has no credibility. The right to register cannot be trusted by the public as the real right state. Germany, Switzerland and other countries implement the right registration system in real estate registration, which has the following characteristics: (1) substantive review. (2) Registration has credibility. According to the provisions of the civil law of Taiwan Province Province, the change of real property right is not valid or disposed of without registration. Regarding registration, the relationship between the third party and the transfer of registration is not clearly defined. According to the provisions of Articles 49 and 50 of the land registration rules of Taiwan Province Province, after accepting the application, the registration authority shall immediately review it according to law, and if there are any defects, it shall notify it to make corrections. It can be seen that the land registration system in Taiwan Province Province of China also implements the substantive examination system. Although Germany implements formal review, it also adopts "window review" and notarization system. In this way, the notary will review the contents first. Because of this audit, registration management can only do a formal audit, but also ensure the correctness of registration. Therefore, the formal review in Germany has the same effect as the substantive review. Only the correct publicity can make the public have reason to believe that the real estate registration has the correct ownership and give it credibility. In countries where formal examination is carried out, the appearance of registration is often inconsistent with the reality because the registration authority does not ask whether there are defects in the registered items. Due to the lack of credibility of real estate registration, bona fide acquisition system can not obtain its foundation. Moreover, if the bona fide acquisition system is applied to real estate at this time, it is obviously not conducive to protecting the legitimate interests of real estate owners. Although the purpose of bona fide acquisition system is to protect transaction security, from the historical background of its emergence and development, its original intention is to protect sports security in the social reality that emphasized static security unilaterally at that time, so as to meet the needs of social and economic development and wealth growth and balance the interests of bona fide third parties and obligees. Therefore, when designing the bona fide acquisition system, we should not unilaterally pursue dynamic security, but ignore the balance between bona fide third parties and obligees. Countries that implement formal examination system for real estate registration do not apply bona fide acquisition system for real estate, which may undermine the legal order of ownership carefully constructed in the past 100 years. China conducts substantive examination on real estate registration, giving it credibility. According to the principle of publicity and public trust, as long as there is no objection to the registration, even if the rights recorded in the registration are inconsistent with the real right status, the interests of bona fide third parties who trade under the registered name because they believe that the registration is correct are still protected by law. Although there is no clear system of bona fide acquisition of real estate in General Principles of Civil Law in China, Article 89 of Opinions of the Supreme Court on Several Issues Concerning the Implementation of General Principles of Civil Law in People's Republic of China (PRC) clearly stipulates that * * * and * * have property acquired in good faith. In this interpretation, "property owned by * * *" obviously includes both movable property and immovable property, while in terms of the evolution of this judicial interpretation, "essentially refers to immovable property owned by * * *, mainly refers to houses owned by * * * *." It can be seen that China has actually recognized the bona fide acquisition of real estate. Some scholars in China oppose the establishment of bona fide acquisition system of real estate in China on the grounds that "China has not yet established a perfect real estate registration system because of its national conditions." All the above reasons are groundless. It is true that China has not yet established a perfect real estate registration system, but this does not affect the establishment of the bona fide acquisition system of real estate in China. The method of public registration of real estate is a common practice in all countries. The bona fide acquisition of real estate relies on the credibility principle of registration to achieve the purpose of maintaining transaction security. A bona fide third party deals with registered nominees because of its trust in registration. Even if registration is separated from its own rights, bona fide third parties benefit from their trust in the credibility of registration. If the real estate is not registered, that is, because the registration lacks credibility, and the third party still deals with the unauthorized person, it can be presumed that the third party is at fault and cannot obtain it in good faith. China has not yet established a perfect real estate registration system, which mainly refers to the existence of a large number of unregistered real estate that should be registered. However, because unregistered real estate cannot be acquired in good faith according to the principle of publicity and public trust, the imperfection of China's real estate registration system has no substantial impact on the system of bona fide acquisition of real estate. Moreover, the sixth item of Article 37 of China's Urban Real Estate Management Law stipulates that the real estate that has not been registered according to law and obtained the ownership certificate shall not be transferred. This provision excludes the possibility of acquiring unregistered real estate in good faith. Therefore, the author believes that the imperfection of China's real estate registration system does not affect the establishment of the bona fide acquisition system of real estate.
Edit this paragraph against movable property
Movable property refers to something that can be moved without damaging its economic use and value, generally referring to money, utensils and so on. Not real estate. The legal significance of distinguishing movable property from immovable property lies in: first, movable property is deliverable and immovable property needs to be registered; Second, in terms of litigation jurisdiction and the application of foreign-related laws, movable property is individualism and real estate is materialism. Atlas of Entries More Atlas of Entries (9)