Research On The Retention Of Title

The retention of title has come into existence for a long time in western legal history. Recently, served as a kind of security, the retention of title is closely combined with sale by installment payment and is being used in property sales. There has no stipulation on retention of title before the enactment of Contract Law in China. Although China's lawmakers transplanted it into Contract Law (Article 134) in 1999, it's far from meeting the practical needs. Therefore, this paper thoroughly discusses the legal characteristics and the regulation structures of it in order to present feasible opinions for the creation of relative implementation process so that I could do something useful for the standard operation of stipulation on retention of title in practice.This paper consists of five parts apart from the preface and epilogue. The first part is mainly about the analyses of types and definition specifications of the retention of title. The second studies the legal characteristics of it. The third part focuses on the legislative practice of it in different countries. The fourth part is about the specification and notification of it and the fifth part is about the analyses on the legal relations of it.The first part analyses the types of retention of title. The types of retention of title have surpassed the simple limitation of retention of title as the transaction develops and different kinds of new types have also been derived. The definition of traditional retention of title in civil law is in a narrow sense and only means the simple retention of title. This paper gives the retention of title a broad definition in order that the definition of it could cover all new types. The differences between retention of title and related stipulations are also studied in order not to make them confusing.The second part divides the doctrines of experts of different countries into construction of title and construction of security interest. While introducing the attributions of their theory ,the author also points out their defects. Based on the discussion, I think that the title and security interests are not conflicted in legal frame and they belong to substantial and formal relations of the same thing. The retention of title has been progressively transformed from the form of title to the form of security interests and has become a kind of security to the new transaction as the business develops. Retention of title is a type of security for things; furthermore, it belongs to a type of non-standard security of obligation law.The third part presents the legislation practice on retention of title in Anglo-American law system and Continental law system. In Anglo-American law system, the British law always recognizes the simple retention of title but maintains cautious attitudes towards Extended Retention of Title and Prolonged Retention of title. In American Uniform Code of Mercantile Law, the differences in the transfer of rights and the transfer of possession are not mentioned and the retention of title is regulated in security interests . Countries in Continental law system commonly recognize the effect of retention of title clauses in statute laws in accordance to the freedom of contract.The fourth part discusses the institution and notification of retention of title. Although it is difficult in the notification of retention of title, the principle of public summons should be adopted. Legislation on principle of public summons can be divided into the principle of coming into effect in registration and the principle of resistance in registration and it is difficult to judge which is good and which is bad. In China, principle of coming into effect in registration and principle of resistance in registration can be used according to the different subject matter.The fifth part studies the legal relations of retention of title. It can be divided into outer relations and internal relations. The internal relations of it include the possession, utilization, and earnings of subject matter and risk beari...