On Validity Of Unauthorized Disposal

The system of unauthorized disposal, one of the most important systems of civil law, which involves several fields of civil affairs system, is theoretically very complicated. This paper makes a rather thorough study to the validity of unauthorized disposal. Firstly, it inquires into the basic theoretical problems of unauthorized disposal which mainly cover the specific connotation of unauthorized disposal, the legal constitutive requirements of unauthorized disposal and the concrete types of unauthorized disposal under different legislative models of real fight changing. Besides, it makes a conceptual comparison between unauthorized disposal and negotiorum gestio, unauthorized agency and legal incapacity. Secondly, from the perspective of comparative law, it makes an investigation to validity of unauthorized disposal act, which gives a detailed introduction to the stipulation on the validity of unauthorized disposal act made by ancient Rome, France, Japan, Italy, Russia, England, the United States and other model legislation. And this comes to a conclusion that except France, other countries all recognize the validity of contract for credit which is concluded based on unauthorized disposal act. By the investigation to comparative law, it is expected to provide reference for the legislative regulation on the validity of unauthorized disposal act of our country. Finally, it inquires into the legislative regulation on validity of unauthorized disposal act of our country, it specifically introduces five points of view on validity of unauthorized disposal act in recent academic circle and analyses the drawbacks of the theory of invalidity, the theory of validity of contract for credit to be confirmed, the theory of validity of contract of real right to be confirmed, the theory of validity of contract for credit to be confirmed but no resistance to bona fide third party and theory of validity, based on which the author puts forward his own points of view that in our country, under the legislative model of adopting credit formalism and real right changing, the unauthorized disposal contract should be valid contract. And to illustrate this point of view the author makes a concrete discussion from both legislative theoretical and practical perspectives.