Research On Ownership Reservation

In a contract for sales, according to the appointment of two parties, the bargainer who still reserves the ownership of object. After the bargainee pays in full or completes special terms, the ownership of object can be shifted. Thus this system is named ownership reservation. As a security way that the bargainer realizes his credit, ownership reservation is widely used in contracts for sales, in which the objects are delivered in advance while the price is paid afterwards.In the following, the important problems in relation to ownership reservation are discussed including its legal nature, legislative modes, internal effect and external effect etc.Part one: The nature of ownership reservationAs for the nature of ownership reservation, there are various theories in academic circles. The first is the conditional shift theory about ownership. It is loyal to the legal form of ownership reservation, using civil juristic act having conditions attached theory to explain the nature of ownership reservation and nodding that the ownership reservation is a kind of civil juristic act having conditions attached. Before the conditional terms achieved, the bargainer is the owner of objects all along. While the bargainee enjoys the rights of possession, using and proceeds of object in terms of the contract as well obtains the contingent right. The second is the theory about security interest. It can be divided into the theories of pledge and security interest, both of which, from the economic purpose of ownership reservation, using the pattern of the guaranteed person and the owner to interpret the relationship between the bargainer and the bargainee, holding the view that the ownership has been shifted to the bargainee along with delivery and that the right enjoyed by the bargainer is one kind of security interest .The third is the theory about joint ownership. It holds that, during the ownership reserved, the subordinate relationship of object belongs to a floating state, so both the bargainer and the bargainee cant not be said to possess the complete ownership, whereas with the payment, the ownership gradually shifts from the bargainer to the bargainee. Thus both the bargainer and the bargainee share the object in common and perform the right of ownership according to their economic purpose. It is rationalization that no matter theories about the conditional shift of ownership or security interest or joint ownership, all acknowledge the security role of object. However, they all exist some definite defect. The view in this text is that we should inspect the quality of ownership reservation from its economic nature. It is a security system and combining the manifestation of the ownership and the nature of real right guaranteed reflects the outcome of the new-type real right dominated by the principle of the "making the best use of everything ". The ownership reservation stipulated in the contracts for sales has the bargainers obtain a real right guaranteed. Meaningwhile, the bargainees acquire an ownership undertaken by the real right guaranteed.Part two: Legislative modes of ownership reservation In many countries and regions the ownership reservation is stipulation in legislations. German is one of countries in which the ownership reservation is most widely used that is stipulated in the clause 455th of German civil code .the ownership reservation can be built up only by agreements of parties and the objects are limited to movable property .In French civil code, there is no clear stipulation about the ownership reservation but it plays an important part in business activities .In Japan, the ownership reservation is acknowledged as a variable security way, mainly applied to the field of consumption . In America, security interest is stipulated in The Uniform Commercial Law. The bargainers carry out the ownership reservation, after goods is shipped to delivery to the bargainees, in validity equal to the reservation to security interest, In mainland China stipulates the ownership reservation in th...