On The Right Disposition

Unauthorized disposition under the 51st article of the Contract Law is the cream of law mind-set. It involves the basic law relationship in several aspects-it is related to the fields of Obligation Law and Property Law, and is interdependent on some law systems such as the juristic act, pattern of property alteration, bona fide acquisition and the effect of contracts. Although the 51st article is very brief with no more than 41 words, it is not easy to understand and interpret it properly.Unauthorized disposition of selling the other's property is named spirit in civil law. It has puzzled practical circle for decades. In order to solve it, we must understand its nature. It is more difficult in context of the formalism of obligation. Based on using for reference of former research, and comparing unauthorized disposition legislation in international treaties and other countries, the author analyzes systematically unauthorized disposition legislation and civil law systems concerned in China.The author thinks current unauthorized disposition legislation is very logical in China, but ignoring impartiality. The most serious defect of 51st article in Contract Law is when owner refuses to admit, the contract is not valid, therefore, the person of "no right to dispose" only bears the responsibility of concluding misfeasance, which conflicts with "incapability of fulfillment" and responsibility of guaranteeing the defects in the right. The current unauthorized disposition legislation is not perfect and needed to be reconstructed, but the problem confronted is how to balance the logical unity and fairness in the law. If the validity of obligation contract is admitted, how to solve the admittance of the owner and the bona fide acquisition would be a problem.In order to solve the logical difficulties abovementioned, this paper falls into six parts to discuss. In fact it has three parts. Part One illustrates the definition and features of "Unauthorized disposition". Different views exist on the behavior and the effect of "no right to dispose" in the circle of civil law in China. The author summarizes them into fivewhose disputed point focuses on the validity of the contract made by the person who has no right to dispose. Part two is about the relationship between unauthorized disposition and the related civil system. This part mainly dissertates the relationship among unauthorized disposition, bona fide acquisition, incapability of fulfillment" and responsibility of guaranteeing the defects in the right. Part three discusses the legislation evolution, the defects and the reconstruction of "no right to dispose" in China, the author proposes that the 51st article in contract law should be: contract is valid under the situation of unauthorized disposition of selling the other's property; contract will be cancelled without the admittance of the owner; the buyer will acquire the ownership if he obtains the goods on bona fide.The perfection of the 51st article needs the related civil system to match. This paper puts forward: The contract made by the person of "no right to dispose" is valid from the time of its conclusion; admittance posthumously of property owner is just making up the composing conditions of fulfillment .The application of bona fide acquisition presupposes the cancellation of the contract. Only in this way, can the legislation be both logical and fair. Good will and ill will can only be differentiated when the contract is, carried out and it will not affect the validity of the contract. If the person of "no right to dispose" fails to carry out the contract on time, it is regarded as a subjective incapability. As a result, the contract will be canceled and he must bear the responsibility of breaking the contract. These viewpoints break the present civil law system. Cancellation system in contract law should be reestablished .