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China'S Law Does Not Pay Enough Attention To The Security And Order Of Property Spanactions In The Country.

2014/4/25 23:05:00 10

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Domestic Property Spanaction Security Order

generally speaking, when movable property is moved to and from its location, it is different from time to time. < a href= "http://www.91se91.com/news/index_c.asp" > movable property rights < /a > shall be in accordance with its new location law. [20], however, this principle is sometimes difficult to match with the principle of protecting property rights that have been acquired in accordance with its old locality law. Therefore, there is such a question: whether the rights acquired according to the previous locality law are recognized and protected by the law of the place of origin after the change of the location of the movable products? The general rule applicable to all countries is that the change of the applicable law does not affect the legitimate rights acquired before, but the rights acquired according to the previous locality law shall be restricted and bound by the later law of place. [21], for example, the twenty-eighth provision of Venezuela's 1998 act on private international law stipulates: "the spanfer of movable property does not affect the rights that have been effectively obtained in accordance with the provisions of the previous law. However, such right is only effective against the third party when it meets the requirements of the new seat law. " [22], for example, the forty-third article and second paragraph of the German Civil Code Act (2010 text) stipulates: "if a right has been entered into other countries, the exercise of that right shall not contravene the legal system of the country." 
 the above practice is of great significance to our country. It involves the issue of how to deal with foreign assets after being nationalized and requisitioned. For example, after the nationalization of the property of a foreign company in China, a state-owned company in China will spanfer the nationalized property to foreign countries through trade. The original owner of the property claims the right to the property, which can be antagonalized by nationalization with extraterritorial effect. However, if the bona fide third party of the property is also advocating the right to the property, it is obvious that such confrontation is untenable. There is no provision for the law applicable law, which is very necessary to be supplemented. In this regard, we can refer to the forty-fourth article and third paragraph of the draft proposal of the China Association for private international law: "when the movable property is spanferred to another country, the former" a href= "http://www.91se91.com/news/index_c.asp" > the real right < /a > shall not violate the law of the state to protect the third party in good faith. " This regulation not only takes into account the protection of the right of vested property, but also makes certain restrictions to protect the interests of bona fide third party who later disposed of the movable property, so that it can achieve the purpose of balancing various social relations and protecting the interests of all parties by legislation. 
 at the same time, it also involves the recourse to the loss of our country's "a href=" http://www.91se91.com/news/index_c.asp "overseas culture < /a > property. The thirty-seventh provision of the law applicable law only provides that "the parties may agree to choose the law applicable to the real right of movable property; and if there is no agreement, the law applicable to the location of the movable property when the legal facts arise" shall be applied. This provision can only apply to disputes in the general sense of movable property rights, and can not be applied to disputes relating to ownership of original owners and bona fide purchasers of stolen cultural relics. If it is not perfected, the application of this regulation will open up a convenient door for spannational illegal circulation of stolen cultural relics. The original owner of the cultural relics did not participate in the spanaction of ownership of the stolen property in the spanaction between the illegal elements and the purchaser. Therefore, it is impossible for the parties to the contract to decide the law applicable to the contract for the spanfer of the stolen cultural relics. In this case, the provisions of Article 37 can not be applied; in the second case, because the lawless person has made careful selection when choosing the place of exchange, and the auction house is not strict with the important channel of cultural relics trading, the purchaser can obtain effective ownership according to the law of the place of spanaction. In accordance with the law of the place where the legal property occurs, the court of our country will again confirm the ownership of the purchaser, and the rights of the original owner of the cultural relics can not be protected at all. The reason is that once there is a dispute over the spannational ownership of stolen cultural relics, the original owners of the cultural relics in China have filed a complaint of returning cultural relics in the courts of China with the object of purchase by foreign buyers. 
 the provisions of this proposal also refer to the forty-fifth article of the draft proposal of the China International Private Law Society: "the ownership of cultural property applies to the laws of the country of origin." If the law of the original country lacks the protection of bona fide third party, the law of locating the location of cultural property may be applied. " In 1996, China signed the Rome Convention on the theft or illegal export of cultural relics by the International Association for the unification of private law, and declared that it had reserved the right of recourse against illegal looting of cultural relics in history, but it needed domestic law to make clear how to recourse it. The above provisions can be recourse pursuant to the law of our country (the law of the original country of cultural property), which means that even if the cultural property of our country is illegally spanferred to the outside world, the ownership acquired by overseas buyers according to the foreign laws shall be limited by the law of our country. At the same time, appropriate compensation should be given to bona fide holders of cultural property in accordance with the provisions of relevant international treaties.