The interpretation (i) of the supreme people's court on a number of issues relating to the application of the law of the people's republic of china on property rights was adopted by the judicial council of the supreme people's court at its 1670th meeting, on 10 december 2015, and is now published and implemented as of 1 march 2016。
Supreme people's court
22 february 2016
[2016] five
Interpretation by the supreme people's court of certain issues concerning the application of the law of the people's republic of china on property rights (i)
(adopted by the trial committee of the supreme people's court at its 1670th meeting, on 10 december 2015, effective 1 march 2016)
In order to properly deal with disputes over property rights, this interpretation has been developed in accordance with the relevant provisions of the law of the people's republic of china on property rights, in the light of civil court practice。
Article 1 is subject to the law if a dispute arises over the attribution of real property rights and the sale, gift, mortgage, etc., which form the basis for the registration of real property rights. The parties have applied for a joint settlement of the above-mentioned civil disputes in administrative proceedings, except in the case of people's courts。
A second party who has evidence that the immovable property register is not in conformity with the real status of the right and is a real holder of the property right in the immovable property should be supported if it requests confirmation of the property right。
If, after the third objection, the registration has lapsed because of the subject matter provided for in article 19, paragraph 2, of the law on property rights, the parties initiate a civil action for the recognition of property rights, which shall be admissible in accordance with the law. The invalidation of the registration of the objection does not affect the consideration of the case by the people's courts。
The transfer of title to immovable property or the creation of other property rights, such as the right to use the land for construction, easements, mortgages and so forth, without the consent of the right holder of the pre-registration, shall be deemed not to have material effects in accordance with article 20, paragraph 1, of the law on property rights。
If an agreement to buy or sell property rights in immovable property under article 5 is found to be null and void, has been set aside, has been set aside, or has been pre-registered as a waiver of claims, it shall be deemed to be “expired” within the meaning of article 20, paragraph 2, of the law on property rights。
Article 6 transfers title to ships, aircraft and motor vehicles by the assignor, and the assignee has paid its value and taken possession, without support, unless otherwise provided by law, from creditors of the assignor who claim to be “good-faith third parties” within the meaning of article 24 of the law on property。
Decisions, rulings, conciliations, decisions of the people's court of article vii, arbitration committees, decisions of the people's court of justice, decisions of the people's court on the sale of goods in the execution of proceedings, awards of debt in exchange for goods, and decisions of the people's court of article 28 of the law on property, which have been rendered in cases concerning the division of common immovable property or movable property and which have entered into force in accordance with the law, shall be considered legal instruments leading to the establishment, alteration, transfer or extinction of property rights。
A person entitled to property rights under articles 28 to 30 of the law on property rights who has not completed the delivery of movable property or the registration of immovable property shall be supported if he or she requests protection of his or her property rights under articles 34 to 37 of the law on property rights。
In the event of a change in the subject of the shared share of article 9 by reason of succession, bequests, etc., the other shareholders who claim to have preferred purchase shall not be supported, unless otherwise agreed between them。
The “equal conditions” referred to in article 101 of the law of property rights under article 10 should be determined by combining the transfer price of the shared share, the manner in which the price is to be executed and the period of time。
During the exercise of the preferential purchase right under article 11, as agreed between the co-owners, treatment is provided by agreement; in the absence of an agreement or if the agreement is not known, it is determined:
(i) if the period of exercise is set forth in a notification containing the same conditions sent by the assignor to the other co-owners, that period shall prevail
(b) fifteen days if the notification does not state the period of exercise or if the period indicated is less than fifteen days from the date of delivery of the notification
(iii) fifteen days in the absence of notification by the assignor, from the date on which the other co-owners knew or should have known of the same conditions that were ultimately established
(iv) six months after the date of the transfer of the shared share, if the assignor has not notified and it is not possible to establish the same conditions as the other co-owners knew or should have known of the final determination。
Article 12 transfers the shares of a co-owner to a person other than the co-owner, and other co-owners who request the purchase of the share on the same terms, in accordance with the law and judicial interpretation, should be supported。
Other requests made by a co-owner shall not be supported if:
(i) no priority is claimed during the period provided for in article 11 of this interpretation, or, while preference is asserted, substantive changes, such as reduced transfer price and increased burden on the assignor
(ii) to request only the avoidance of the contract of assignment of a shared share or to render the contract ineffective on the ground that its preferential right to purchase is infringed。
Article 13 transfers a shared share among the co-owners and other co-owners who claim priority to purchase under article 101 of the law on rem rights are not supported unless otherwise agreed between the co-owners。
In cases where more than two of the co-owners of article 14 claim priority and no negotiation is possible, a request to exercise the right of preferential purchase in proportion to their respective share at the time of the transfer should be supported。
If the assignee is not aware that the assignor has no right to dispose of immovable or movable property and is not guilty of gross negligence, the assignee shall be considered good faith。
A genuine rights holder claiming that the assignee did not constitute good faith should bear the burden of proof。
An assignee of immovable property shall be held to be aware that the assignor has no right of disposition if the assignee of the immovable property:
(i) the existence of a valid register of objections
(ii) without the consent of the right holder of the advance notice registration, during the period during which the registration is in effect
(iii) matters in respect of which judicial or administrative authorities have ruled or decided, in accordance with the law, to seize or otherwise restrict the right to immovable property have been recorded in the register
(iv) the assignee is aware of an error of the subject of the right recorded in the registry
(v) the assignee knows that his or her person has a real property right in immovable property in accordance with the law。
If the real rights holder has evidence that the assignee of the immovable property should know that the assignor has no right of disposition, the assignee should be held to have gross fault。
If the object, place or time of the transaction is not in accordance with the normal course of the transaction, the assignee of article 17 should be held to have committed gross negligence。
Article 18, paragraph 1 (a), of the law of property rights “when the transferee cedes the immovable or movable property”, means when the registration of the transfer of title to immovable property or the delivery of the movable property is legally completed。
If a party delivers movable property in the manner provided for in article 25 of the law of rem, the transfer of the legal act of the movable property takes effect at the time of delivery of the movable property; if a party delivers movable property in the manner provided for in article 26 of the law of rem, the agreement between the assignor and the assignee on the transfer of the claim for return of the original property takes effect at the time of delivery of the movable property。
Where the law provides otherwise for the establishment of rights in immovable property and movable property, the right holder shall be deemed to be in good faith at such time as the law provides。
The “reasonable price” referred to in article 106, paragraph 1 (b), of the law on property rights in article 19 should be determined by reference to the market price at the place of the transaction and the usage of the transaction, depending on the circumstances of the subject matter of the transfer, the nature, quantity and mode of payment。
If the assignor in article 20 delivers to the assignee ships, aircraft and motor vehicles, as provided for in article 24 of the law on property rights, it shall be satisfied that the conditions for bona fide acquisition under article 106, paragraph 1 (c), of the law on property rights are met。
Article 21 does not support an assignee claiming title under article 106 of rem law if:
(i) the contract of assignment is deemed invalid for breach of article 52 of the contract law
(ii) the contract of assignment is avoided because of statutory reasons such as fraud, coercion or risk to the assignee。
This interpretation of article 22 has been in force since 1 march 2016。
This interpretation applies to new first instance cases before the people's court following its application。
This interpretation does not apply to cases of first and second instance which were already before the people's court before the application and which have not been completed since the application of this interpretation, as well as to cases in which the person concerned has been finally tried before the application of this interpretation, has applied for a retrial after the application of this interpretation or has decided to reopen it in accordance with the trial supervision procedure。
