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A Study On The System Of Ownership Retention In The Context Of Judicial Interpretation Of Contracts For Sale And Purchase

Posted on:2017-02-27Degree:MasterType:Thesis
Country:ChinaCandidate:Y LiFull Text:PDF
GTID:2206330488464836Subject:Civil and Commercial Law
Abstract/Summary:PDF Full Text Request
The system of ownership reservation refers to the agreement between the buyer and the seller in the contract,the subject matter from the buyer’s possession,use and income,and the buyer’s ownership of the subject matter shall be owned by the seller prior to the performance of the contract.Ownership reservation is an important legal system in market transactions.By separating the ownership and possession of the subject matter, the effect of the ownership reservation on the creditor’s rights can be guaranteed. For the seller, Because of the ownership of the subject matter, when the buyer fails to fulfill the obligation to pay the price,he has the right to retrieve the subject matter and sell again.To the buyer, he can be occupied and use the subject matter in advance.As well,the proceeds of the subject matter can be obtained during the occupation.Therefore,in a certain sense,ownership reservation is a real right guarantee in the form of creditor’s rights, it also makes the ownership reservation has the characteristic of the creditor’s rights and the real rights.The State Promulgated Interpretation of the Supreme People’s Court on the application of law in the trial of cases concerning the sale and purchase of a contract (hereinafter referred to as:the judicial interpretation of the trade contract), it improves the system of ownership reservation in further, but it still can not meet the needs of economic development.The judicial interpretation provides that ownership reservation is only applicable to movable property, and provides the seller to retrieve the right and the right to buy the seller as well.However,for the rights of the buyer, he only has the right of redemption. From the judicial interpretation of the provisions of the retention of ownership, it is seen that the judicial interpretation gives a relatively adequate protection to the seller.As the protection of the buyer’s right, it is inadequate.Through the analysis of the judicial interpretation,make a discussion on the rights and obligations of the buyer and the seller,analyze and study the Recall right, resell right and expectant right, right of redemption.On the basis of the legislation of the foreign ownership reservation system,we make clear the shortcoming of the judicial interpretation of the trade contract:lack of protection of the right to buy, ownership reservation publicity system, retrieve the seller right range and the design of relevant system of claim for damage compensation.In view of the deficiency of existing legislation in our country, put forward my own proposals for improvement.First,we should make sure the buyer expect right in the legislation and provide the alienability of buyer’s expectation.Secondly,establish the publicity system of the retention of title.Thirdly,we should limit the scope of the seller to retrieve the right and norm the procedure exercises.At last,we should give the seller and the buyer the right to claim for damages.In the real deal,there are all kinds of security measures,however,it does not mean that these measures can reduce or even eliminate crowding, retention of ownership for space. Because the ownership reservation system has the superiority which the traditional guarantee does not have,so it is irreplaceable.
Keywords/Search Tags:Retention of Ownership, Expectant Right, Recall Right, Subject Matter
PDF Full Text Request
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