关于善意取得制度在中国是否适用于赃物

The Application of Bona Fide Acquisition Mechanism to Stolen Property in PRCIssue and two different viewsThe bona fide acquisition mechanism has been adopted by the PRC Property Law (PRL) in 2007, the general rule of which is provided in article 1061. Then, article 107 provides that the original owner of lost property can recover his ownership from a third party of good faith within five years, which means that the good faith acquisition mechanism is limited by statute involving lost property.2However, PRL does not provide whether faith acquisition mechanism can apply to stolen property, which gives birth to a hot controversy involving this issue up to now in the theory and practice.Some people claim that according to the traditional theory, stolen property is different from lost property because in the latter circumstance the possession of the person who disposed the property to a third party is legal, while in the former circumstance it is illegal. Some other people argue that from the angle of a third acquirer of good faith, the nature of lost property and stolen property is the same. Some people proclaims that the transaction of stolen property should not applied bona fide acquisition otherwise would indirectly encourage crime. Some other people argue that laws should pay more attention to the safety and certainty of transaction than a static status.Factually, whether apply the bona fide acquisition mechanism to stolen property is not a question of right or wrong, but a question of choice between two different values. This situation not only happened in civil law system, but also emerged in common law system. Lord Denning has a famous statement:“In the development of law, two principles have striven for mastery. The first is for the protection of property: no one can give a better title than he himself possesses. The second is for the protection of commercial transactions: the 1“In case a person unauthorized to dispose a realty or chattel alienates the realty or chattel to an assignee, the owner is entitled to recover the realty or chattel. The assignee shall obtain the ownership of the realty or chattel if meeting all of the following conditions, unless it is otherwise prescribed by law: (1) to accept the realty or chattel in good faith; (2) to purchase the realty or chattel at a reasonable price; and (3) in case registration is required by law, the alienated realty or chattel shall have been registered, while in case registration is not required, the delivery thereof shall have been accomplished. In case, according to the preceding paragraph, an assignee obtains the ownership of a realty or chattel, the original owner may require the person unauthorized to dispose of the realty or chattel to compensate for his losses. In case a related party obtains any other form of real right in good faith, the preceding two paragraphs shall apply by reference.”2“The owner or any other holder has the right to recover a lost property. In case the lost property is possessed by any other person through alienation, the owner has the right to require the person unauthorized to dispose of the property to compensate for damages, or, ask the assignee to return the original property within 2 years as of the date when he knows who is the assignee. But in case the assignee purchases the lost property through auction or from a qualified operator, the holder shall, when requiring the returning of the original property, pay the assignee the amount that the assignee has paid for purchasing the property. After paying the amount, the owner has the right to recover the amount from the person unauthorized to dispose of the property.”person who takes in good faith and for value without notice should get a good title. The first principle has held sway for a long time, but it has been modified by the common law itself and by statute so as to meet the needs of our own time.”3Undoubtedly, in modern society, the encouragement of more transaction becomes a significant principle in economic market, which is reflected in law by the protection of the dynamic safety of property.AnalysisIn my view, the good faith acquisition mechanism can be and should be applied to stolen property in PRC. I would like to discuss the theoretical basis and practical support of this opinion.The logic prerequisite for bona fide acquisition mechanism to be applied to stolen propertyWhen it comes to the theory of logic prerequisite of bona fide acquisition, there are four major theories. The first one is the theory of …instant legal effect‟which was adopted by the France Civil Code and the Spanish Civil Code. The second one is the theory of …law authorization‟ which supposed that it is the law authorized the person who has no legal right of disposal to dispose the property in question. Therefore, the legal consequence is the third acquirer in good faith can legally get the ownership of the property. The third one is the theory of …possession protection‟ which claims that the status of possession has the credibility thus the possessor should be deemed to be the legal owner. The Italian Civil Code and new Japanese Civil Code adopt this theory. The last one is the theory of …right appearance‟ (Recht sscheinhhg) which means that the appearance of possession can be trusted by a third party in good faith.4In modern society, transactions happen more and more frequently which cause the ownership of property alter often. Thus, the dynamic safety of property becomes more important than the static safety of property today. The theory of right appearance is consistent with the aim of protection of dynamic safety of property, the combination of which two can perfectly express the reasonableness and logicality of bona fide acquisition mechanism.5Therefore, this theory is popularly adopted.As to stolen property, according to the theory of right of appearance, when criminal possesses property, generally speaking, a third party of good faith does not know he is a criminal and the property is the result of a crime, then he or she can reasonably believe that the possessor has the legal right to dispose the property except that the third party prior know or ought to know the real fact. Therefore, it is logical for good 3See Bishopsgate Motor Finance Corporation Ltd v Transport Brakes Ltd [1949] 1 KB 332 at336-337.4Dekuan Liu, Problems and New Prospect of Civil Law, [M], Sanmin Press,1980, 325.5Zaiquan Xie, Civil Law Theory of Property Rights, [M], China University of Political Science and Law Press, Beijing, 1999, 221.faith acquisition to be applied to stolen property. The logic preliminary lies in the theory of right of appearance.The empirical analysis of PRLFirstly, article 106 of PRL is the general rule of bona fide acquisition while article 107 is the exception of that. According to the principle of rule of law, the general rule functions otherwise provided by law, which means that the bona fide acquisition mechanism can be applied to stolen property. If not, when a third acquirer claims the legality of its legal ownership according to article 106 of PRL, there will be no legal and persuasive argument to refute such claim.Secondly, we have to focus upon the legislative intent, which is a very important approach in interpretation of law in PRC. There had been four versions of draft of the PRL before it was official enacted. By reference to the Third Version Draft of Property Law of PRC,6we can find the bona fide acquisition conditionally applies to stolen property there. Related materials indicate that lawmaker eventually did not explicitly provide this rule in consideration of that this problem is very complicated and can be legally dealt with in criminal procedure. Some state that, “the reason why legislator did not provide the application of stolen property, the legislative intent, is that the original owner of the stolen property, mainly apply for a protection from judicial bodies by enforcing the Criminal Code, the Criminal Procedure Code and the Law on Public Security Administration Punishments.”7So we have to turn to the content of the related criminal provisions.In 1965, the Supreme Court and the Supreme Procuratorate and the Ministry of Public Security of PRC jointly issued an interpretation document, …the Interim Provisions of Several Problems I nvolving Confiscating and Handling Stolen Goods‟. The article 6 of this regulation provides that if the third acquirer is in good faith, the criminal should buy the property back or compensate for loss, and if the criminal has no ability to do so, a negotiation and mediation can be initiated. 8From above, we can see that it is not clearly provided whether the bona fide acquisition can be applied although the provision tends to protect a good faith third party. Then, in 1996, the Supreme Court published an interpretation document involving fraud cases, …the Interpretation of Several Spec ific Application Problems Involving Fraud Cases‟. In this document, the Supreme Court expressly states that when it comes to a fraud case, the bona fide acquisition mechanism should be applied to.9Subsequently, in 1998, several departments jointly published a legal document which provides that the good faith acquisition should be applied to stolen motor vehicles. 10However, how about other kinds of criminal cases? There is no a general rule about the application of bona fide 6Huixing Liang, the Advice Draft of PRC Property Law, Social Sciences Academic Press, Beijing, 2000, 368.7ibid, 368.8/item/flfgk/gwyfg/1965/113106196501.html9/law/law_view.asp?id=1298910/view/19443f5bbe23482fb4da4c9b.htmlacquisition to stolen property. Therefore, the problem is what the criminal provisions provide is not so much explicit and not so much basic and general and cannot cover all kinds of criminal cases. Confusion is still there. Meanwhile, from an angle of reality, in judicial practice of PRC, the investigation organs (police mainly) seldom pay attention to the civil rights of a third party who also dare not to seek for a legal civil protection when it comes to a criminal case due to the traditional sense.Then, we can turn back to the point about legislative intent. What is the legislative intent? What we should pursue is the original legislative intent or a literal one? The statement above mentioned is to seek for the legislator‟s original intent when the PRL was making. After law was enacted, law has its own intent which sometimes is not the original one that the legislator had wanted to reach. The more modern approach is the latter. What the article 106 and article 107 of PRL shows us is, literally, stolen property does not be excluded out of the scope of general rule, which is distinguished from lost property. In this sense, the pursuing of legislative intent leads to the former approach, rule of law. Moreover, another ground that we refuse to accept that the legislative intent is leaving this issue to criminal procedure is that this is a civil issue which should be ruled by civil law. In other words, it is necessary for civil law to regulate this aspect.11Thirdly, we can observe this problem from an angle of comparative law. It is well known that PRC adopts a lot of mechanisms from civil law system, including the bona fide acquisition mechanism. Then we can find that many civil countries‟ civil codes put the lost property and stolen property together as a same category which do not apply good faith acquisition. Art. 2280 of the France Civil Code provides:“Where the present possessor of a thing lost or stolen has bought it at a fair or market, or at a public sale, or from a merchant selling similar things, the original owner may have it returned to him only by reimbursing the possessor for the price which it has cost him. ”Section 935 (1) of the German Civil Code provides:"The acquisition of ownership under sections 932 to 934 does not occur if the thing was stolen from the owner, is missing or has been lost in any other way.The same applies, where the owner was only the indirect possessor, if the possessor had lost the thing.”Section 934CC of the Switzerland Civil Code provides:“Where a person in possession of a movable chattel l oses it or had it stolen from him or otherwise taken from him against his will, he can demand it back within a period of five years from any person who is detaining it.”11Bingwan Xiong, …the theory involving the bona fide acquisition upon stolen property and its right of re possession‟，science of law: Northwest institute of politics and law journal, 2008，volume 26，issue 1。