| The relationship between constructive delivery and good faith acquisition is a puzzle which should be argued according to the mode of statute law interpretation, thus challenges scholars’ ability of abstraction and reasonable judgment. Where a thing alienated by way of constructive delivery does not belong to the alienor, can the acquirer in good faith become the owner? No answer can be found directly in Chinese Property Law, so the analysis has to proceed in semantic, systematic and teleological approach. In semantic argument, the legal term “delivery” in Article 23 and 26 of Chinese Property Law is confined to actual delivery. Although the definition of “delivery” after Article 208 of Chinese Property Law is ambiguous, we can also sure that it cannot be interpreted as constructive delivery according to systematic interpretation. Therefore, in the context of Chinese Property Law, generally speaking, the legal term “delivery” can not be interpreted as constructive delivery.From the view of systematic argument, the relationship between constructive delivery and good faith acquisition depends on the mode of how to transfer the ownership of a movable. Under the mode of transfer of a movable according to obligations, the effects of public notification and public trust of constructive delivery are both very limited, thus the reliance interests of the acquirer and third parties are in peril. Under the mode of transfer of a movable according to property right contract, although the public trust of constructive delivery is limited, trade relationships can also be simplified so long as actual delivery is the pre-condition of good faith acquisition.As a technologically legal mechanism, constructive delivery has different legal effect compared to actual delivery. Only in the condition of derivative acquisition can the property right contract of constructive delivery take effect, whereas in the condition of good faith acquisition, it cannot. In other words, constructive delivery is incompatible with good faith acquisition. To fill up the gap in the statute law, Article 106 of Chinese Property Law should be restrictively interpreted in teleological argument, otherwise “bad risk”, which is far from the aim of this article, would be induced by law. |
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