The Rational Construction Of Unauthorized Disposal Institution In China

Although unauthorized disposal was established in article 51 of Chinesecontract law in 1999, there is still a long way to improve it. It causes a broadcontroversy and can not form a uniform application in the practice. As anaverage civil judge in a basic court, I am facing the confusion about how toapply the unauthorized disposal. To solve this problem, I consult lots of books,including some writings coming from Germany, France, Switzerland, etc.Further, I discuss the concept, characteristics and effects of unauthorizeddisposal in different models of property variation, explore the reality of Chineseunauthorized disposal and put forward that Chinese unauthorized disposalshould be based on the model of debt formalism. Based on this, I appraise thedomestic popular theory of unauthorized disposal and explicate the concept ofunauthorized disposal in the model of debt formalism. After all this attempt, Icome to a conclusion that we should distinguish the effects of unauthorizeddisposal in different circumstances. The unauthorized disposal should bedesigned more harmonious, more according with market-orientate economy andmore likely to balance the different interests.This thesis consists of 4 chapters:Chapter 1 relates to the concept of unauthorized disposal. Confusion onconcept is liable to cause controversy. The first part of chapter 1 expounds theconcepts of disposal, act of disposition and the power of disposal. Disposal incontinental law system refers to some legal actions which can cause the changeof legal relationship. This concept acquires a uniform consensus, butcontroversy focus on the classifications of legal actions. Disposal or the act ofdisposition in Germany is the product of abstracting the legal actions. It is ofproperty actions and need not to consider the reason. Disposal in France mainlymeans sales contracts, because there is no classification of act of disposition andact of burden. Property variation emphasizes the intention. Disposal inSwitzerland is not same with the one in Germany; it takes the model of debtformalism, so disposal only concerns debt contracts. In a word, the power ofdisposal controls the effects of act of disposal under German law, but has noinfluence on the effects of debt contracts under Switzerland law and doinfluence the effects of debt contracts under French law. The second part ofchapter 2 introduces the different concepts of unauthorized disposal in differentcountries. In Germany, it refers to the acts of disposition conducted byunauthorized persons. In France, it means an unauthorized person makes aproperty transfer contract. The concept in Switzerland is same with the one inFrance at large, but the former distinguishes between debt variation andproperty variation. Then I take a look at the concept of unauthorized disposal inour China, adopted the popular one. The last part of chapter concerns other civilconcepts, such as unauthorized represent and gestio negotiorum.Chapter 2 is a comparative study of authorized disposal. Comparing theauthorized disposal institutions in Germany, France and Switzerland, we canfind that it has a close relationship with the models of property variation. Moreimportant, the basic institutions in the three countries are almost the same. Thelaw in Switzerland affirms the effects of unauthorized disposal contracts andprotects benefits of the third person in a maximum extent. The law in Germanydesigns a power of disposal to control property variation. This power bothprotects the benefits of right owners and maintains the effects of contracts. Itcan also avoid the difficulties caused by property actionsChapter 3 discusses the realities of authorized disposal in China. The firstpart concerns some legislation. We had treated the authorized disposal contractsas void contracts until the contract law was promulgated. The contract law...