중국 물권법상의 부동산 선의취득제도

Abstract

The Chinese Property Law(Enforcement Date 01. October, 2007.) recognizes bona fide acquisition about immovables as well as movables(Article 106 of The Chinese Property Law), unlike Korea which recognizes it only about movables(Article 249 of Korean Civil Code). The reason is as follows; first, as the registration system of immovables in China is not completely furnished, there are many unregistered immovables. Also, dual purchase and sale of housing or even multiplex purchase and sale has been occurring frequently. As a result, the rights of the buyer which purchases a house are not guaranteed, and therefore bona fide acquisition of immovables should be recognized in order to protect a bona fide third person. Bona fide acquisition of immovables demands four requirements (Article 106 (1) of The Chinese Property Law). Above all, a person without the power to dispose a immovable shall take an act of disposition. Second, a buyer shall purchase the immovable in a bona fide. Third, the buyer shall make registration. Finally, such immovable is assigned with a reasonable price, which shall be judged with overall consideration for the place, time, conditions of transaction, and etc. But although such immovable is assigned with substantially lower price, there is a dominant opinion which recognizes bona fide acquisition in view of public trust over registration of immovables. When bona fide acquisition about immovables is recognized, the ownership or other real rights which have been existed on the immovable shall lapse. In theory, there are differences of opinions about whether this is the original acquisition or the derivative acquisition, but the common opinion interprets the original acquisition. If the buyer has obtained the ownership of the immovable, the original holder of the right shall enjoy the right to claim damages to the non-holder of the right to dispose of the immovable(Article 106 (3) of The Chinese Property Law).