On The Non-right Action Of Disposition

As "spirit of the law", the theoretical power of the non-right action of disposition lies in its close association with relative civil law system such as legislative mode of the real right change, juristic act and bona fide gains. We must study it by applying plenty of civil law knowledge. After the promulgation of Contract law of P.R.C. the scholars in both academic and practical field discussed the non-right action of disposition regulated in article 51 warmly. So the article tries to describe the non-right action of disposition by analysis on the association between the non-right action of disposition and the legislative mode of real right change, the appraisal and perfecting suggestion of the system, the confliction and coordination between the system and other relative system, in order to learn from and ask teachers and classmates. Part one investigates the association of the non-right action of disposition and the legislative mode of real right change. Firstly, the article argues the definition of non-right disposition is different in different legislative mode of real right change. In the mode of autonomy of the will and creditor's right formalism, the definition is the contract signed by the non-right of the subject matter. The typical example is the contract of selling other's subject matter. In the mode of real right formalism, the definition is juristic act of real right, carried out by the non-right party, aiming to result in the change of real right of the subject matter. Secondly, by analyzing the association of the validity of the non-right disposition and the legislative mode of real right change, the article appraises and analyzes the validity of non-right disposition in different mode and advantages and disadvantages of the three modes, concluding that while insisting on the basic theory of legislative mode, we should desalinize the theory of mode, so that we can balance the justice and order. In the mode of autonomy of the will, the agreement of the parties can result in the change of real right. The validity of non-right disposition isn't unanimous in different countries that adopt different modes. Most countries' civil law has revised this mode to some extent. Most countries don't adopt this mode because the change of real right in this mode is lack of public summons, which is harmful to trade safety and violate legal logic. In real right formalism, juristic act is divided into imposition act and disposition act. The validity of the imposition act isn't subjected to the lack of right of disposing of the party, but the validity of disposition act is pending because of the lack of right of disposing of the party. Although the legal technique in it makes the jural relation clear, the mode isn't adopted by most countries except Germany. This mode centers on the theory of juristic act of real right, advocating there is an agreement of real right independent from the agreement of credit, emphasizing the independence and abstract of juristic act of real right. This theory is so abstract that civilians can't understand it, and it is so paradoxical that it can't coordinate with other systems of civil law. So the exquisite legal technique is useless because of the collapsing of its premise. In the creditor's right formalism, juristic act isn't divided into imposition act and disposition act. The concept of the agreement of real right independent from the agreement of credit doesn't exist. Only the combination of valid contract for credit and registration of immovables or delivery of movables can result in the change of real right. One side, this mode has the advantages of pure autonomy of will, on the other side, it overcomes the disadvantages of the extremely abstract real right's formalism. Part two evaluates and analyses the non-right disposition system in our country, which is mainly regulated in Article 51 of Contract Law, then put forward legal suggestion.The article argues that our country should adopt the mode of creditor's right formalism. In...