Several Problems On The Ownership Detaining System

Guaranty for debt right is necessary development of market economy; mortgage definitely will increase the exchange cost. The strict requirement of guaranty has made the further development of installment payment impossible. The reserving system of ownership will perfect the trading institutions characterized with installment payment, and enable the further development of the trade by installments payment. Under the ownership-reserved system, the buyer in the trade (or in the barter or exchange activities) own and use the objectives at first, but before the specified clauses in the contract reached by the both parties are fulfilled, the seller still claim the ownership. And the ownership is transferred to the buyer upon the performance of the due duties. The ownership detaining system, due to its feasibility and adaptability, is widely used in US, British, Germany and Taiwan. The regulations which can be viewed as part of this system are found in the lately enacted ontract Law? where the item 134 says that he parties have the right to reserve the ownership of the objectives in the seller in the contract when the buyer does not pay for it or does not perform other duties? In the ownership reserved trade, the buyer enjoys the right of expectation, which means that the buyer obtain the legal right of ownership, although he can not get the ownership of the objective because some requirements are not satisfied in accordance with his contract with the seller, after he tries to finish his responsibilities, for instance, pay off the prices. Various views about the right of expectation can be found in the legal field. In this article, the author thinks the buyer's right of expectation is the materialized or more effective debt right. That is to say that the right of expectation is virtually the debt right. But under the ownership reserved system, the right of expectation has expanded in terms of debt right, including some effects of the material right effects. In this kind of exchange, the seller still have the ownership of the objective if the clauses have not been completely met and the buyer only can claim the right of expectation. If the seller transfers the whole ownership to the third party instead of his part of right, it will infringe on the interests of the buyer. So this article studies how to distribute the interests reasonably under this circumstance. The author concludes that the buyer should be granted the right of revocation except the system of goodwill acquisition, similarly, when the third party infringes on the buyer's right, the buyer has the right to claim for compensation. In the ownership-reserved system, the seller has the right to take back the objective if the buyer does not perform his responsibilities. It has not been agreed on how the right of taking-back affects the validity of the ownership reserved trade contract. Generally there are 3 different schools of thoughts: revocation right effect theorem, legal deadline attached contract revocation theorem and contract accomplishment theorem. The author agrees with the third one. Revocation right is strictly restricted, on one hand it is admitted by the laws and on the other hand it is restricted by them so that it will not hinder the endeavor for an exchange of the parties and the current lawful relations arbitrarily, and the right of taking-back will not devastate the contractual relationship among the parties. In...