Research On System Of Title Retention

The system of Title Retention, which was originated from Roman law and thereafter adopted by the German Common Law, has a long history, but it has not ever been paid enough attention by public because it had seldom been quoted through the times in practice. As a guarantee method integrating closely with the hire-purchase system, it was not until the end of 19th century that the system hereof had gradually aroused the interest from the public. In view of its unique functional nature, the captioned system has widely been accepted by both continental law system and common law system. With the implementation of"The Contract Law of the PRC."in 1999, this system was formally adopted by our country. However, the system will certainly encounter some obstacles in both theory and in practice because of its concise clauses therein. This paper can be divided into three sections, specifying the relevant matters concerning the system of Title Retention so as to better elucidate the system hereof:Section one is about the legal nature of Title Retention. This section first analyzes the different scholars'views on the legal nature of this system and on this basis, the writer sets forth that the system, legally, was constituted by the title element and element of guarantee right. As a matter of fact, the title element is supposed to be superficial in nature; while the element of guarantee right is substantial in this constitution. As a consequence, it is far more reasonable to illuminate the legal nature of the system from the angle of the obligation guarantee. As far as its nature is concerned, the system is a guarantee type different from real right of security, which pertains to one of the non-classical obligations, that is, .one of the forms of the guarantee of creditor's right, whose purpose is to guarantee the losses of creditors.Section two relates the object and creation of Title Retention. In this section, the writer first makes analysis of the object of Title Retention, holding that the system may govern both movables and real estate and further, the force of Title Retention will thereafter be imposed on the subject matter in case of accession. Then, the writer analyzes the conditions that the institution of Title Retention shall meet. Afterwards, the writer points out that the majority of countries resort to the registration system to balance the interests among buyers, sellers and the third party. This will certainly safeguard the safety and convenience of transactions, preventing the relevant parties from the right conflicts. In the last part of the section, the writer proposes specific configuration concerning establishment of the registration system of Title Retention after introducing a variety of legislative cases by comparison.Section three specifies the validity of Title Retention. In the section, the writer presents his own viewpoints on the buyer's expective right, seller's recall right and the risk burdening. When mentioning the buyer's expective right, the writer discusses the realization and the termination in addition to analyzing the legal nature of expective right; When relating the seller's recall right, the writer first makes some notes on the legal nature of recall right, and then, discusses separately the conditions, procedures and special situations when exercising the recall right thereof; When specifying the risk burdening of subject matter, the writer holds that this point should be separately defined from two angles in that there exists the accession of subject matter, which is, undoubtedly, a special case in this regards.