A Study On The Validity Of Unauthorized Disposition

Unauthorized disposition is a typical case in law science and is referred to as a bank of law thinking. It is a specific regulation bridge which connects obligatory law and real right law and has great significance in theory and in practice. The unauthorized disposition's validity is not a solitary matter, but is interdependent on and interacts with many other systems of civil law. So it is very important to research it systematically. The fact that the person who has no right to dispose the property of the real owner in an unusual way is possible to lead to the loss of the real owner's right, so the stability of property order and the safety of trade are concerned. As a result, it is necessary for the legislation to properly balance the conflict between still safety of property and the moving safety of trade. On the basis of the preceding research, this paper make a thorough study on unauthorized disposition.The main body of this paper is divided into six parts.' Part one mainly analyses the definition of unauthorized disposition. At first, this part differentiates the conception of disposition and acts of disposition and points out that the conception of acts of disposition is only a specific term of Germen law. Second, it discusses the conception of unauthorized disposition and considers that the implication of unauthorized disposition is different in different law language. At last ,this part compares unauthorized disposition with other civil law conceptions such as unauthorized agency, voluntary service, incapability of fulfillment and banning of disposition.Part two probes into the patterns of alteration of real right. To correctly select the patterns of alteration of real right is the premise of defining the validity of unauthorized disposition, so this part compares and analyses the virtues and shortcomings of the three patterns of alteration of real right among the present civil law system and the conclusion is that the Creditor's formalism should be the ideal one.Part three is on the validity of unauthorized disposition. In this part, the author firstly analyses various kinds of theory and legislation about the validity of unauthorized disposition. The author then demonstrates that the legal effects of unauthorized disposition is double. At last, the relation between unauthorized disposition and bona fide acquisition is explored and the conclusion is that the certainty of the validity of unauthorized disposition is the premise of bona fide acquisition.Part four inquires into the relation between unauthorized disposition and warranty of defective rights. In this part, the author argues that unauthorized disposition conflicts with warranty of defective rights and in the case of unauthorized disposition warranty of defective rights can't be applied.Part five discusses the connection between unauthorized disposition and unjust enrichment. In this part, the author maintains that in the case of unauthorized disposition, the application of unjust enrichment is very complicated, so it is needed to analyse it respectively.Part six is the comment on the legislation of our country and the author's legislative construction. In this part, the author points out that the legislation of our country doesn't adopt the theory of juristic acts of real rights, so the rules of unauthorized disposition of China and of German are superficially similar but different in essence. Then the author offers the legislative construction that the validity of unauthorized disposition is certain in contract law and it's legal effect of transference of real right is uncertain.