중화인민공화국 물권법(2007년)의 물권변동에 관한 연구 - 현행법의 구성과 주요내용을 중심으로 - (A Study on the real right alternation in the Real Right Law of the People's Republic of China(2007))

서지정보

· 발행기관 : 한국재산법학회
· 수록지 정보 : 재산법연구 / 27권 / 1호 / 319 ~ 355페이지
· 저자명 : 김성수

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.

영어초록

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.

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