Study On Some Aspects Of Title Retention

With the development of economics the system of Title Retention was adopted by many countries and was provided in "General Principals of the Civil Law" and "The Law of Contracts" in our country. Compared with other countries' provision, our country's provision is very simple. In this thesis I want to expound this system with reference to foreign legislations and theories in order to make contribution to our country future legislation. This thesis is divided into five parts:The first part of this paper starts with the concept of Title Retention. This part also displays the reforming process of Title Retention concerning the embodiment and development of title retention in Roman Law, German Law, French Law, American Law, British Law, Japan law and the Law in Taiwan. The first part is the brief introduction of title retention.The second part is about analysis of the legal nature of Title Retention. Firstly, this chapter introduces domestic and international scholar's different views on this question, then gives analysis on that and propose author's own opinion at last.The third part expounds the establishment of Title Retention. Though legislation of most countries in the world excludes the real estate as object of Title Retention, but scholars around the world have not formed unified understanding on it. Quite a few scholars both at home and abroad hold the opinion that the trade of real estate can be the object of Title Retention. This dissertation agrees with mainstream view, and holds that Title Retention is not suitable for real estate, and gives out relative argument. On constituent elements of Title Retention, there are doctrine of meaning, doctrine of written form, and doctrine of registration in the legislation of various countries. The author supports the doctrine of written form and registration defense, as Taiwan does. At last how to display the Title Retention was discussed and I hold this position that the theory of "written creation and registered antagonism" should be adopted in legislation in our country.The fourth part analyses the internal legal effects with the emphasis on rights of recovery and rights in expectation. In the Title Retention trade, the seller enjoys mainly taking-back right, namely the right of fetching the subject matter under the situation that buyer doesn't perform obligations agreed. As for the legal effect of the fetching right, this paper introduces three kinds of theories briefly, and analyses and evaluates them one by one, thus draws the view of this paperIn the Title Retention trade, the buyer enjoys mainly expectant right, which means although the buyer can't obtain the ownership of the subject before he satisfies the special condition, according to the agreements of both parties, he enjoys a kind of special position that he should obtain the ownership of the subject matter when the condition is satisfied. As for the legal nature of the expectant right, the author thinks that it's a kind of real right in essence, and an ownership, just because the ownership is reserved by seller, which is an incomplete ownership.The fifth part is about the relationship between Title Retention and other hypothec rights. The relationship is also analyzed between Title Retention and chattel hypothecation, chattel pledged assets and lien.The sixth party is about the relationship between Title Retention and bankrupt.