The article is long, divided into three parts, namely, the first part, the second part and the second part

五、 Special acquisition method of ownership

The acquisition of real right can be divided into original acquisition and subsequent acquisition. The original acquisition refers to the acquisition of real right not based on the rights and will of others, while the subsequent acquisition refers to the acquisition of real right based on the rights and will of others. Successive acquisition can also be divided into transfer acquisition and creation acquisition. Transfer acquisition refers to the acquisition of others' property rights as is, while creation acquisition refers to the creation of usufructuary rights on others' ownership. For the ownership with the most comprehensive power in real right, its acquisition methods include general acquisition and special acquisition. And bona fide acquisition, picking up lost and drifting objects, discovering buried and hidden objects, and paying additional are special acquisition methods of ownership.

（一） Bona fide acquisition

Bona fide acquisition, as an important system of civil law in continental law system and common law system, is related to the protection of the static security of property ownership and the dynamic security of property transactions. [1] The bona fide acquisition in the real right is often accompanied by the unauthorized disposal in the creditor's right, which is one of the two sides of the aforementioned "static security" and "dynamic security", involving three civil subjects: the unauthorized disposer, the transferee and the owner.

The contract part of the Civil Code has deleted the clause of "unauthorized disposal" in Article 51 of the original Contract Law. The effectiveness of the transaction contract signed by the unauthorized disposal person and the transferee depends on the provisions in the chapter of "civil legal act" of the general provisions. In the absence of invalidity, revocation and pending effectiveness, the effectiveness of the aforementioned transaction contract should be affirmed, Under this background, it is judged whether it constitutes bona fide acquisition according to the provisions of the title of real right: if it constitutes bona fide acquisition, the transferee obtains the ownership of the object in dispute, and the original owner has the right to claim damages from the person without the right to dispose; If it does not constitute a bona fide acquisition, the owner has the right to recover the object of dispute. If the unauthorized disposer is at fault, the transferee has the right to hold the unauthorized disposer liable for negligence, breach of contract or tort.

Therefore, the validity of the transaction contract and the bona fide acquisition are the key to determine the ownership of the object in dispute and the relationship between the rights and obligations of the unauthorized disposer, the transferee and the owner. The following will focus on the content of bona fide acquisition.

1. Concept of acquisition in good faith

Bona fide acquisition, which means that between the transferor and the transferee, the transfer registration of real estate or the delivery of movable property is made for the purpose of transferring the ownership or other real rights of the subject matter. Even if the transferor has no right to transfer the ownership or other real rights, the transferee can still obtain the ownership or other real rights of the subject matter when the transferee is in good faith.

2. Constitutive elements of bona fide acquisition

The first paragraph of Article 311 of the Civil Code stipulates three major requirements:

(1) The transferee is in good faith when receiving the real estate or movable property

tation of the Property Code of the Civil Code lists five situations: there is an effective objection registration in the register; Within the validity period of advance notice registration, without the consent of the obligee of advance notice registration; The register has recorded the relevant matters that the judicial organ or the administrative organ has ruled or decided to seal up or restrict the real estate rights in other forms according to law; The transferee knows that the right subject recorded in the register is wrong; The transferee knows that others have legally enjoyed the real estate right.

For "gross negligence", the second paragraph of Article 15 and Article 16 of the Judicial Interpretation of the Civil Code Property Code list two kinds of situations: the real obligee has evidence to prove that the real estate transferee should know that the transferor has no right to dispose; When the transferee receives the movable property, the object, place or timing of the transaction does not conform to the transaction customs.

(2) Transfer at a reasonable price

Based on the principle of fairness, the application of bona fide acquisition should be based on the premise of paid acquisition. If the property is accepted free of charge, the transferee has obtained certain benefits in possession of the property, so returning the property will not suffer much loss. Therefore, the transferee must pay the transferor with corresponding property or money when obtaining the property. When property is acquired without compensation, acquisition in good faith cannot be applied.

The so-called "reasonable price", according to Article 18 of the Judicial Interpretation of the Property Code of the Civil Code, should be comprehensively determined according to the nature, quantity, payment method and other specific conditions of the subject matter of the transfer, with reference to the market price of the place of transaction at the time of transfer and the transaction habits and other factors.

(3) The transferred realty or chattel that should be registered according to the law has been registered, and the transferred realty or chattel that does not need to be registered has been delivered to the transferee

This condition refers to the completion of the corresponding property right change process for whether the subject matter of the transaction is a real estate or a movable property. The principle of real estate is registration, and the principle of movable property is delivery.

As for special movable property, according to Article 19 of the Judicial Interpretation of the Civil Code Real Right, the bona fide acquisition of ships, aircraft and motor vehicles shall be subject to the delivery of the transferor to the transferee, without registration.

For special delivery, according to the second paragraph of Article 17 of the Judicial Interpretation of the Real Right Code of the Civil Code, the time when the civil juristic act of transferring movable property takes effect is the time when the movable property is delivered; Under the instruction delivery, the time when the agreement between the transferor and the transferee on the transfer of the right to return the original object takes effect is the time when the movable property is delivered. In view of the insufficient publicity effect of the change of possession, denying the application of bona fide acquisition under the change of possession is more conducive to protecting the legitimate rights and interests of the parties and maintaining the security of transactions. Therefore, bona fide acquisition cannot occur under the change of possession.

3. The legal effect of bona fide acquisition

The second and first paragraphs of Article 311 of the Civil Code respectively stipulate the legal effects that constitute and do not constitute bona fide acquisition.

(1) If it constitutes a bona fide acquisition, the transferee acquires the ownership of the subject matter in dispute, and the original owner has the right to claim damages from the person without the right to dispose

The bona fide acquisition is actually the effective transaction contract+constitutes the bona fide acquisition. The elements of the validity of the transaction contract, that is, the validity of the civil legal act, are: the actor has the corresponding civil capacity; The expression of intention is true; It does not violate the mandatory provisions of laws and administrative regulations, and does not violate public order and good customs. The constitutive requirements of bona fide acquisition are: the transferee is bona fide when receiving the real estate or movable property; Transfer at a reasonable price; The transferred realty or chattel that should be registered according to the law has been registered, and the transferred realty or chattel that does not need to be registered has been delivered to the transferee.

The original obligee cannot request the transferee to return the property because the transferee's acquisition in good faith extinguishes the ownership of the subject matter. The protection of the original obligee can only be carried out at the level of creditor's rights, that is, the original obligee can require the transferor to bear the responsibility for breach of contract, tort liability or return of unjust enrichment based on the claim of creditor's rights, so as to require the transferor to compensate for damages. There may be a phenomenon of concurrence, and the original obligee can choose the most favorable claim to claim or bring a lawsuit against the transferor.

At the same time, according to Article 313 of the Civil Code, the original rights on the movable property will be extinguished after the bona fide transferee obtains the movable property. However, unless the bona fide transferee knew or should have known the right at the time of the transfer. The ownership of movable property is obtained from the disposer of real right through the system of acquisition in good faith. Because the acquisition of its rights is not based on the act of transfer, but on the direct provisions of the law, the acquisition in good faith belongs to the original acquisition. For the acquisition in good faith of the ownership of movable property, the restrictions on the original rights should be eliminated in principle, and the transferee has full ownership of the movable property. According to the provisions of relevant laws in China, the rights set on movable property other than ownership mainly include mortgage, pledge and lien, which belong to the nature of security interest. They are rights aimed at giving priority to the exchange value of the subject matter. They can directly change the exchange value of the subject matter into money or other values sufficient to satisfy the creditor's rights. In this case, the creditor can still claim rights from the debtor and require it to provide new security.

(2) If it does not constitute a bona fide acquisition, the owner has the right to recover the object of dispute. If no person with the right to dispose has the fault, the transferee has the right to pursue the liability for breach of contract or tort from the person without the right to dispose

If we deny the bona fide acquisition, we need to deny the validity of the transaction contract or the constituent elements of the bona fide acquisition. According to Article 20 of the Judicial Interpretation of the Property Code of the Civil Code, there are two cases of denying the validity of a transaction contract: the transfer contract is deemed invalid; The transfer contract is cancelled. See the chapter "Civil Legal Act" for the specific situations of invalidity and revocation. According to the Judicial Interpretation of the Civil Code Real Right, the constitutive requirements for denying bona fide acquisition are as follows: the transferee was maliciously or grossly negligent when receiving real estate or movable property; Transfer at an unreasonable price; The transferred immovables or movables that should be registered according to the law are not registered, and those that do not need to be registered are not delivered to the transferee. Since it does not constitute a bona fide acquisition, the owner has the right to request the transferee to recover the subject matter based on the right of real right claim.

The legal relationship between the unauthorized disposer and the transferee can be discussed in the following three situations: if the transaction contract is invalid or canceled due to the fault of the unauthorized disposer, the transferee can choose to hold the unauthorized disposer liable for the contracting fault; If the transaction contract is valid and the constituent elements of bona fide acquisition are not reached, the transferee can investigate the liability for breach of contract of the person who has no right to dispose; If both the validity of the transaction contract and the constitutive requirements of bona fide acquisition are caused by the intention or negligence of the unauthorized disposer, the transferee may consider investigating the tort liability of the unauthorized disposer.

Derivation: The bona fide acquisition system is also applicable to other real rights. The third paragraph of Article 311 of the Civil Code stipulates that "Where a party obtains other real rights in good faith, the provisions of the preceding two paragraphs shall apply." Therefore, the parties can obtain the usufructuary right, security interest, etc. through bona fide acquisition. In addition, bona fide acquisition has many derivative topics because of the type of property right change and the nature of the transaction object.

Bona fide acquisition and the change of real right under administrative justice

In the case of changes in real rights caused by legal documents made by the people's court or arbitration institution or government expropriation decisions, registration and delivery are not considered as the effective elements. After the legal documents or expropriation decisions become effective, the parties or the country can obtain ownership. Due to the "time difference" between the change of real right and the publicity, such a situation may occur in practice. After the new obligee obtains the ownership, the real estate is still registered in the name of the original obligee, and the movable property is still occupied by the original obligee. If the original obligee transfers the real estate or movable property to a bona fide third party, there will be a conflict of rights between the real obligee and the bona fide third party. In the case that the new obligee has not gone through registration or has not possessed the movable property, if a bona fide third party transfers the movable property or immovable property or establishes a restricted real right on it, the third party who transfers the immovable property or movable property from the obligee based on the principle of public trust and out of trust in the immovable property rights register or the possession status of the movable property can oppose and exclude the real right of the real obligee, and the court can claim the rights of the bona fide third party, It should be supported according to law.

Bona fide acquisition and rights such as equity and securitized creditor's rights

Whether the bona fide acquisition system is applicable to equity. Article 7 of the Third Judicial Interpretation of the Company Law stipulates: "If the investor makes a capital contribution with property that does not enjoy the right of disposition, and there is a dispute between the parties about the effectiveness of the act of capital contribution, the people's court may determine it with reference to Article 311 of the Civil Code." At the same time, Article 25 and Article 27 of the judicial interpretation respectively stipulate that the transfer of equity by nominal shareholders and "multiple sales of one share (including pledge and other dispositions)" are also applicable to the bona fide acquisition system.

Whether the bona fide acquisition system is applicable to creditor's rights. It is generally believed that due to the principle of debt relativity, there is no method that can be publicized to indicate the existence of the creditor's rights, so the bona fide acquisition system cannot be applied. However, with the development of social economy, the circulation of creditor's rights has become increasingly frequent and active, and securitized creditor's rights have emerged, such as corporate bonds, large amount negotiable certificates of deposit and various bills. These securitized creditor's rights are usually regarded as chattels in the civil law. For those who do not register or do not need to go through the registration procedures, the bona fide acquisition system can be applied. For the chattels represented by real right securities such as warehouse receipts, bills of lading and cargo securities, the bona fide acquisition system can also be applied.

As for the bona fide acquisition system in the field of enterprise bankruptcy law, Judicial Interpretation II of the Bankruptcy Law stipulates that if the property of others possessed by the debtor (bankrupt enterprise) is illegally transferred to a third person, the provisions of Article 311 of the Civil Code shall also apply to determine whether it constitutes bona fide acquisition. If it constitutes a bona fide acquisition, Article 30 of the judicial interpretation stipulates that the third party has acquired the property ownership in good faith, and the original obligee cannot retrieve the property. The transfer act occurs before and after the acceptance of the bankruptcy application, and the creditor's rights formed by the original obligee due to property losses are used as ordinary bankruptcy creditor's rights to pay off, and the debts caused by the damage to the original obligee due to the performance of duties by the administrator or relevant personnel are used as common benefit debts to pay off. If it does not constitute a bona fide acquisition, Article 31 of the judicial interpretation stipulates that if the third party does not acquire the property ownership, and the original obligee recovers the transferred property according to law, the debts incurred due to the consideration paid by the third party shall be paid off as ordinary bankruptcy claims and common interest debts respectively when the transfer occurs before and after the acceptance of the bankruptcy application.

Obtaining and picking up lost and drifting objects in good faith, and discovering buried and hidden objects

Article 312 of the Civil Code stipulates that: "If the lost property is in the possession of another person through transfer, the right holder has the right to claim damages from the person without the right to dispose of it, or request the transferee to return the original property within two years from the date when he knew or should have known the transferee; however, if the transferee purchases the lost property through auction or from an operator with business qualifications, the right holder shall pay the fee paid by the transferee when requesting the return of the original property. After the right holder pays the fee paid to the transferee, They shall have the right of recourse against those who have no right to dispose of them. " It can be seen that the bona fide acquisition system can be applied to the lost property two years after the transaction occurs or the transaction is purchased by auction or a qualified operator. The same conditions apply to drifting objects, buried objects and hidden objects. The bona fide acquisition system is not applicable to stolen goods. This law does not provide for the bona fide acquisition of stolen goods. The legislative consideration is that for stolen and robbed goods, the owner mainly recovers and returns them through the judicial organs in accordance with the provisions of the Criminal Law, the Criminal Procedure Law, the Public Security Administration Punishment Law and other relevant laws.

（二） Picking up lost and drifting objects, finding buried and hidden objects

The first sentence of Article 312 and Articles 314 to 318 of the Civil Code provide special methods for obtaining the ownership of "lost property"; At the same time, Article 319 provides that if a drifting object is found, or a buried object or a hidden object is found, the relevant provisions on bona fide acquisition of "found lost object" shall apply. The following are analyzed together:

1. The owner or other obligees shall have the right to recover the lost or drifting objects, buried or hidden objects; If the finder or discoverer knows the obligee, he shall return it to the obligee

According to Article 312 and Articles 314 to 315 of the Civil Code, the owner or other obligees, such as the usufructuary right holder and the security interest holder, have the right to recover the lost and drifting objects, buried objects and hidden objects. If the finder or discoverer knows the obligee, he/she shall timely notify the obligee to get it or deliver it to the public security and other relevant departments. If the relevant departments receive the lost property and know the obligee, they shall timely notify him/her to get it. If they do not know the obligee, they shall timely issue a public notice to find it.

The foregoing regulations provide for the right of return request in a more thorough way, and other texts are needed for the concept. The so-called "lost property" shall be subject to the following conditions:; The person who has to take possession loses possession; Must be unoccupied. "Floating objects" refer to objects floating on the water. "Buried objects" refer to movable objects that are hidden in movable or immovable property, difficult to find from the outside, and whose owner is unknown. The meanings of hidden objects and buried objects are basically the same. The so-called "picking up" refers to the discovery and actual possession of the lost property. Therefore, although the lost property is found without possession, it cannot be called picking up. Discovery and possession are the two elements of the act of picking up, and neither of them constitutes picking up. However, the understanding of the act of picking up does not necessarily mean that the person picking up the property directly controls it. According to the general concept of society, anyone who has the fact of possession of the lost property, such as hiring a guard or publishing a statement in the newspaper, constitutes picking up.

2. The finder and discoverer shall keep the goods properly, and shall bear civil liability if the goods are damaged or lost due to intent or gross negligence; The obligee shall pay the necessary expenses for safekeeping when receiving the articles

Article 316 of the Civil Code stipulates: "The finder shall properly keep the lost property before it is handed over to the relevant department and the relevant department receives it. If the lost property is damaged or lost intentionally or through gross negligence, the finder shall bear civil liability."

Article 317 of the Civil Code stipulates: "When claiming the lost property, the obligee shall pay the finder or the relevant department the necessary expenses for keeping the lost property. If the obligee offers a reward to find the lost property, it shall perform its obligations as promised when claiming the lost property. If the finder misappropriates the lost property, it shall not have the right to claim the expenses incurred for keeping the lost property, nor shall it have the right to request the obligee to perform its obligations as promised."

3. Lost and found objects, drifting objects, buried objects and hidden objects that have not been claimed within one year from the date of the announcement shall be owned by the state

Article 318 of the Civil Code stipulates that: "If the lost property is unclaimed within one year from the date of issuance of the notice of requisition, it shall be owned by the state." It can be seen from this law that the ownership of the lost property cannot be transferred without the issuance of the notice of requisition to notify the obligee to receive this procedure; The 1-year period belongs to the exclusion period in nature, without the consequences of suspension, interruption and extension; After meeting the above conditions, the lost property is owned by the state, not by the finder or custodian.

（三） Additional payment

Article 322 of the Civil Code refers to the newly added system of "additional payment". The so-called additional payment is the general academic term for the three aspects of attachment, mixing and processing.

1. Where there is an agreement on the ownership of the things produced by processing, adhesion or mixing, the agreement shall prevail; In the absence of an agreement or unclear agreement, the provisions of the law shall apply; If there are no provisions in the law, it shall be determined in accordance with the principle of giving full play to the effectiveness of the object and protecting the innocent party

The so-called "processing" refers to the legal fact that the value of a thing is enhanced by working on it. The so-called "attachment" refers to the combination of things of different owners to form a new thing. The new thing formed by attachment is called attachment, including attachment of movable property and immovable property and attachment of movable property and movable property. The so-called "mixing" refers to the mixing of movable property of different owners, which is called a new thing.

The reason why additional payment has become a way of obtaining ownership is that when things of different people combine or mix into a new thing or become a new thing due to the processing of things, or the original state cannot be restored, or the cost of restoring the original state is too large, which does not conform to the principle of economy and efficiency. Therefore, starting from the principle of enhancing social wealth and giving full play to the utility of things, we should recognize that additional payment can cause changes in property rights, and reconfirm the ownership of new things formed by additional payment, so that they can be attributed to one person or form a common ownership. It can be seen from the foregoing provisions that under the item of additional payment, the ownership and division shall be determined according to the principles of party autonomy, making the best use of everything and protecting the innocent party.

2. If damage is caused to the other party due to the fault of one party or the ownership of the determined property, compensation or compensation shall be made

Attributing the added goods to one party will cause damage to the other party. The party who has not obtained the ownership of the added property may request the person who has obtained the ownership of the added property to pay for the loss suffered or the damage caused to the other party due to the fault of one party.

3. After additional payment, the rights on the original object continue to exist

Based on the subrogation of real right for security, the original burden of rights can exist in the subrogation of the movable property. If, according to the provisions of Article 41 of the Judicial Interpretation of the Security System of the Civil Code, after the establishment of the mortgage according to law, the mortgaged property is attached, and the attached property belongs to a third person, and the mortgagee claims that the effect of the mortgage extends to the compensation, the people's court shall support it; The mortgagor has the ownership of the added property. If the mortgagee claims that the effect of the mortgage right extends to the added property, the people's court should support it. However, if the addition results in an increase in the value of the mortgaged property, the effect of the mortgage right is less than the increased value.

Derivation: How to deal with the additional payment in the house lease? The author has sorted out Articles 7 to 10 of the Judicial Interpretation of Urban Housing Lease Contract. The mind map and handling principles are as follows:

This lecture analyzes ownership, the most comprehensive and absolute real right of power, from different perspectives. The next lecture will focus on the usufructuary right of "use value" of things, what powers and classifications are there in the usufructuary right, and please see the next episode of "Tao" Listening "Road" Talk<Civil Code>Usufructuary Right of Property Rights.