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The nature of settlement: one may not ignore the problem - the real estate contract for the sale of the settlement is


I. INTRODUCTION recent years, with the development of a unified contract law, civil legislation, the focus turned to property law and Civil Code, in academic research but also set off Property Law of the bursts of enthusiasm. Among them, changes in patterns of property rights is part one of the hottest trends. As far as I know, at least five have been officially published doctoral thesis is directly related to this, other research papers, textbooks and academic monographs in the mode of presentation of the property changes and research is endless, and many of the people Law people directly involved. from those of the institutional system, value analysis, historical source, compare, and many other aspects of foreign property changes the mode of a full range of analysis and research, and achieved fruitful results. However, I have a confusion has not been satisfied with the answer: property changes the relationship with the contract settlement system should be coordinated to give discussed. System from a system perspective, the contract for the sale of the property changes, and overlap at least partially settled in that part of the two systems should remain the same before and after. But now the situation is to study the mode of property changes the nature of the scholars on the settlement of the issue or did not elaborate or mention of; and research scholars in his discussion of contract law performance of the system performance of the contract or contract settlement system system, again gently let go of the issue, or a passing, maybe they think it belongs to the category of property changes, the result is the lack of systematically expounded the theory of the nature of the results pay off. is generally believed that one of the countries of China belongs to civil law, and system of the civil law in the form of a very obvious feature, therefore, for the Chinese law, from the perspective of systematic physical the right to change and settle the contract or the Unified grasp meaningful. In this essay, the author does not attempt to show that the model for change in the attitude of property, but would like the following in a variety of different models should be made on how to explain the nature of settlement, and thus to make arrangements for the relevant system. For this purpose, the author used the method of logical analysis, I believe that unless there are other more important reason for the different systems should not be free to undermine the logical consistency. Of course, the logical consistency should give value to the different needs and respond to the needs of real life to make corresponding adjustments, or result of this adjustment resulted in lack of coordination on the logical level, this lack of coordination is necessary though, does not affect the practical application of the law, but too often if this lack of coordination, additional theory is too complicated, the value system may also hollow. Therefore, we have legislation that have not bound by the legislation of the country is trying, perhaps choose the model that minimizes disruption of logical consistency is one of the factors should be considered. Many of the papers demonstrate a variety of property changes mode through the joint operation of other relevant rules, to achieve the same function, so the level of value for all the models are to be acceptable. In this case, more highlight the importance of logical consistency, at least it makes the law easier to teach, learn and use, thereby reducing social costs. However, the general nature of settlement is bound to lead to many purposes unrelated to the discussion, which highlighted the impact of the subject, this paper is to settle the nature of real estate sales contracts, for example, discusses the specific changes in different property mode following the nature of how to define for settlement, and at the appropriate time out of the scope of real estate transactions in the broader area of ​​the nature of settlement. Second, the meaning of Marxist nature of settlement under the contract for the sale real estate sale of the meaning doctrine is behavior, or to effect delivery or to register as elements of After Italy, Japan and many other civil law countries have been following the legislation by the meaning doctrine. Meaning from the original meaning of the starting doctrine, meaning doctrine at least the following characteristics: First, because the establishment of ownership with the contract for the sale and transfer, therefore, assume the seller has the obligation to transfer of ownership is reflected in the Napoleon Code, it only provides for the obligations of the seller to deliver, but does not provide for transfer of ownership of the seller's obligations. Even the parties entered into a sale can not be achieved appointment as a set of ownership debt the purpose, because the Reservation will become the trading of trading. Second, because the ownership of the establishment with the contract for the sale and transfer, so at the time of entering into contract for the sale, the seller shall be entitled to the ownership of the subject matter. Therefore, selling things to others is not a valid contract, it is also clearly defined in the Third, since the establishment of ownership with the contract for the sale and transfer, so the thing for the future, kind of thing can only be entered into the contract for the sale of the property to produce or take effect after a specific technology. Although the sale of future things, no provision of the Code, but the same logic premise, through the same logical deduction should be able to come to the same conclusion. , maintaining this pattern or simply by following the needs of this requirement will be out of touch with reality, therefore, following the doctrine by means Italy, Japan did not fully accept the above requirements. 1942, the ownership or other rights obligations; 3, to be chasing wins and material defects to the buyer to provide security. first paragraph of Article 1478: If the conclusion of contracts of sale when the seller does not have title to the property to the buyer if the seller assumes the obligation to obtain title to the property. Article 560: The subject of the rights of others for the sale, the seller made a negative transfer of the buyer of the rights and obligations. We can infer, although Italy and Japan are following the doctrine under the meaning of the real need for a different amendment. Is in the French Civil Code, the meaning of the doctrine is also not much affect the characteristics of the transaction, because the rules and jurisprudence through the doctrine of ancillary support, meaning doctrine of the defect has also been offset to varying degrees. but in any case, the meaning of doctrine, the transfer of ownership of the object is not an independent legal under the act occurred. This fully reflected in: the others things, kind things and future things in the contract of sale, transfer of ownership although the effect can not occur at the time of contract of sale, but the reality of the subject matter without the need to wait until the time of delivery. For these three cases, the after-acquired right to dispose of the seller, will be the subject matter of a particular object out of or in the future, the ownership transfer occurs immediately and automatically, without will or any of the parties involved in specific acts. Thus, even in these three cases, the ownership transfer contract for the sale itself is still effective, the parties did not act independently of the transfer of title. Therefore, under the Doctrine of the meaning of the seller's primary obligation is the delivery contract for the sale has already occurred by the transfer of ownership of the subject matter of the possession, there is no doubt that such behavior is a fact that acts of delivery, therefore, the seller of the contract behavior can only be settled is the fact that this is the meaning of Marxist model following settlement of real estate sales contracts to explain the nature of the inevitable conclusion. three real estate sales contract claims under the settlement of formalism nature creditors'formalism connotation and extension of the theory is controversial, but the mainstream view is that the claims in the formalism sale Therefore, Dr. Liu Jiaan to this change in mode is called formalism claims under the settlement of the nature of the real estate contract of sale involves two issues, first, the settlement or the legal act is the fact that behavior? Second, if the settlement of a legal act, then the meaning of the parties that in addition to other transfer of ownership, whether the meaning of settlement also requires that the elimination of the debt does that mean? In the first issue, Austria and Switzerland was made a different theory of interpretation. In Austria, only the simple fact that delivery of behavior change in the meaning of property claims and the occurrence of the meaning of that one, there is no difference; while the Swiss law, the mainstream view is that the delivery means includes transfer of title that it is independent of the meaning of claims that happen to exist, but not enough to place the property itself, meaning that changes in debt contracts yet to be combined with effective changes in property rights occurred. formalism therefore claims under the settlement will have different interpretations of nature. I believe that the formalism in the claims, should define the nature of the settlement of legal action, the reasons are mainly the following points. First, as Dr. Liu Jiaan highlighted, creating a transfer of ownership of the object and the debt will be transferred to this ownership will not be one thing, the latter with the former compared to factors that include the new , meaning that property changes objectively exist. In addition, this definition is also the common will and contract basis only consistent with the concept. Second, the claims of formalism, the selling of property of others is a valid contract, the seller bears the obligation to transfer ownership to the buyer. But the problem is the fact that if the settlement is only a behavior that the subject matter of transfer of possession, how it can achieve the transfer of ownership of it? Because the transfer of ownership to be effective, in addition to claims outside the contract shall be valid, when the settlement of the contract, the seller should have a right to dispose of the subject matter, the simple transfer of possession alone does not achieve the transfer of ownership. Therefore, once the transfer is the seller does not dispose of the material, such as still belonging to another person or thing delivered by the seller at the time of the insolvency proceedings, unless there are other good reasons to obtain the buyer does not obtain ownership of the subject matter . Defined as the satisfaction of the fact that there are contradictions in their behavior, on the one hand, the subject matter in these circumstances should not be a change of ownership, on the other hand, the elements of change of ownership has been fully equipped, should have a change of ownership. The settlement of legal action can be defined as well to resolve this contradiction, because the settlement acts are acts of punishment, of course, people have a right to dispose of required action. Thirdly, the general view that only legal action can be agents, and agents pay off in the real world is extremely common. Fourth, there is no doubt that the settlement is defined as the legal act, the provisions of the relevant capacity, there is room for, which is also conducive to protect the interests of the minor. in the second issue, the scholars discussed the domestic or not, or their brief, or just refer to the views of scholars in Taiwan, and Taiwan scholars on this issue a more detailed analysis does have a review of Germany Medicus which there are some elaborate, but they are unified on the settlement of the nature of the discussion, not specific to the real estate contract for the sale of the settlement meant the issue. The author would like to first contract for the sale of movable property in the settlement of the issue meant to be elaborated after the analysis of other settlement means the existence of the contract. I believe that the formalism in the claims under the contract for the sale of movable property settlement, not only the meaning of ownership transfer should be indicated, and should have a settled meaning, the meaning of the elimination of claims that. the following reasons: First, from a logical point of view, why the change of ownership transfer of ownership of the means must be said, and the elimination of debt without a corresponding intention is it? Could it be that in the settlement, when there is transfer of ownership of an objective means just that, but did not destroy the existence claims meant that the space, whether the debt is completely eliminated the consequences of the law? The judge is not only too arbitrary, and there is no consistency in the logic. Second, specific rules, the general view that the effective elements of settlement, including the right to take delivery of benefits to those who need to fulfill, while others need to take delivery of the right has the right to dispose of claims or have claims disposition after the ratification by the personnel lead or share with the conditions of quasi-debt. Gaiyou Si in the Larenz professor also made clear that in Germany, the prevailing doctrine that, if a debtor to repay debts of minors were paid, but he did not deliver the property of their legal representative, He has not debt relief, unless the legal representative agrees to accept payment by minors, because the only way to make limited capacity to get the best protection. ask, if there is no settlement to dispose of the claims, why do people claim requires a disposition to take delivery of it? In particular, when the debtor to pay off creditors, a minor, if the settlement means that the only meaning that includes transfer of title, then the act of settlement belongs to the legal interests of minors, a pure act, without the legal representative of the ratification should also be effectively established, which should be due to pay off the debt attributable to destroy, but through that and that debt is not eliminated in these cases, which resulted in a logical contradiction. On the contrary, if it determines the elimination of settlement of claims contains the meaning that the disposition of claims can reasonably be asked to explain, to a minor does not eliminate settlement of claims of creditors will view a reliable theoretical basis. Third, if on the one hand that the settlement act is also a legal act, on the other hand advocated by Marxism, can not bring about any effective settlement of their legal consequences, and only with claims to the ownership of a transfer contract, which must create a new theory to explain this. this practice can not say that is unreasonable, but this way it acts to the traditional doctrine of the law added an exception, and this exception could have been avoided. Because, if it determines the elimination of settlement of claims contains the meaning that it does not hold once the debt contract, invalid or revoked, also claims ineffective, then the premise of settlement behavior does not exist, the claims are not, and also how to eliminate it, so the settlement acts will only ineffective, it can not transfer ownership, which can not destroy the traditional legal doctrine based on a reasonable explanation for doctrine. Fourth, this is the greatest respect for the meaning of the parties. if the parties clearly indicate that the behavior of its transfer of ownership is not to pay off debt, based on the concept of autonomy, it seems that should not be attributed to debt elimination. However, if the settlement does not include elimination of the meaning of claims, simply a transfer of ownership means that if, in these circumstances, we can hardly say that the behavior of the parties does not constitute a settlement, because it is after all the elements of the full of the settlement, so that, because the settlement of claims will be extinguished, but the meaning of which was inconsistent with the parties. And if that means settlement contains settlement, it can fully respect the autonomy of the parties, in these circumstances does not eliminate debt. However, we to look in from the transfer of real estate contract for the sale of the settlement came out, the problem arises: in the settlement of other contracts, in accordance with the requirements of logical consistency, it also requires have settled the meaning of it? It raises a doctrinal nature on the settlement of the dispute, which opposed the settlement should have settled the meaning of the following main reasons: first, not as a creditor to take delivery of debt and without debt settlement, there is no room for settlement means there. Second, if the elements of meaning to settle, when the creditors take delivery of the payment that is settled without meaning, then the debtor to pay but did not pay off though, this is obviously unreasonable. Third, the benefit is the fact that behavior,[link widoczny dla zalogowanych], if you need a settled meaning, then the minor will not be able to carry out the kinds of benefits, it does not match with the prevailing view. Fourth, the settlement means the settlement of the statutory offset provisions do not mean liquidation of the statutory requirements. The author believes that the reason there is not enough to be against the settled meaning of strong support. First of all, without the need to take delivery of the debt and not as a debt settlement in the settlement do not need to have meaning, but this is only exceptional case, as in the repayment of debt in the two did not need a subject the existence of the right to receive, but can not deny this right to take delivery of the elements belonging to the same settlement. Therefore, can not be used to deny the need to have settled in other cases the meaning. Second, if creditors take delivery of the payment that is settled without meaning, can we claim settlement does not set up? There is a basic principle of civil law is to prohibit self-contradictory behavior, it is the inevitable requirement of the principle of good faith, so accept the payment of creditors on the one hand, on the other hand there is no settlement of claims can not constitute the discharge means, in clear violation of good faith requirements, the proposition can not get the support of the law, so the objection is untenable. Third, the fact that minors can benefit or can accept the fact that payment of the issue, it should be said that the fact that minors can benefit, it does not violate the requirements have settled meaning. Because the legal effect of this behavior is to eliminate debt, are minors under the law, the interests of the pure, of course, can be minors. On the contrary, I think without the legal representative consent because minors can not accept the fact that debt relief payment to the debtor on the ground as the legal representatives without the consent of the rights to minors and can not pay the same debt relief, because only in order to make the best interests of minors protection. Of course, if the minor has already accepted the payment, they should have been accepted as the rights of minors, as the burden of the return of unjust enrichment minor obligations, the debtor will pay to settle the obligation. Finally, the settlement of the offset provisions of the meaning not only can not deny the existence of settlement, contrary to the existence of secondary meaning as a settlement permit. Because the offset is first applied the principles specified by the debtor, the debtor is nothing more than the specified exactly clear its wish to settle cases in which the debt is just, is not that there is an indirect proof of settlement meant it? Of course, if the debtor failed to specify, can not let the unresolved long-term legal relationship, so the law must make a statutory offset provisions, but it can not be denied is usually the case should have settled meaning. claim is settled I should have settled the meaning of the general, but the meaning is not clearly shown, in most cases, it is implied in the conduct of the parties being, as we can from the contract for the sale of the property settlement agreement in the extract, we can extract from the settlement of settlement desired behavior, but the two are not mutually agreeable independent, in fact, these two desirable intertwined, constitute the settlement of legal means, ie the transfer of ownership of the seller's meant to eliminate claims of ownership and the buyer's access to means to eliminate the debt acquired in the opposite direction from HUD.