System Of Retention Of Title

Market economy is said in certain meaning to be risk economy, so it is inevitable to work hard to guarantee creditor's rights. Traditional guarantee means don't much fitting the new-type transaction paying by installments. While the retention of title system can effectively secure creditor's rights, also promote such new-type trade to develop further .The first section of this paper starts with the concept of title retention system, then it analyzes the rationality of the title retention system which exists, and the legal foundation and function mechanism of the guarantee function.The retention of title system, due to its strong flexibility and extensive suitability, has been generally adopted by Great Britain, France, Germany, U.S.A., and Taiwan, etc.. The second section of this paper presents briefly the legislation and practice about the retention of title system in these countries.The third section of this paper expounds the legal nature of the title retention. As for the legal nature of the title retention, the scholars of various countries have formed different views. The author analyzes every view briefly, and thinks that "the assuring function " is the key to recognize the nature of the title retention and " ownership form " is its speciality that differs from other assuring means, thus demonstrates the legal nature of the title retention-Assuring ownership, which is a kind of rights and interests with several characteristics of ownership and real right granted by way of security.The fourth section of this paper analyzes the legal effect of the title retention emphatically. Once the title retention contract is tenable, its legal effect extends to both parties and the third party. This paper mainly discusses buyer's expectant right, seller's taking-bake right and the risk of the subject matter in the title retention contract. Buyer's expectantright and seller's taking-bake right are the important points that this paper discusses.In the title retention trade, the buyer enjoys mainly expectant right, which means although the buyer can't obtain the ownership of the subject matter 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 expectant right aims at obtaining ownership of the subject matter through paying, therefore it has certain property value and can be transferred, and needn't be agreed by seller in principle. About the protection of the expectant right, this paper discusses it from four aspects: the seller selling the subject matter again, seller going bankrupt, seller's creditor requesting the subject matter for enforcement, and a third party encroaching upon the subject matter.In the title retention trade, the seller enjoys mainly taking-bake 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 paper: the legal effect of fetching right should be different before.and after the subject matter is sold again, that's to say, the legal effect of fetching right is.realization of contract or rescission of the contract. As for the condition and procedure of exercising fetching right, they have a great influence on buyer's interests, the author thinks that the buyer doesn't pay the seller or finish the specified conditions according to the appointment, which impairs or may impairs the realization of creditor's rights, the seller may exercise right of fetching according to the procedure of " returning to notify " and " taking back by force ". As forthe range of the subject matter about the effect of fetching right, it involves the balance of both parties' interests, this paper discusses it from five aspects.The risk of the subject matter involves interests balanced of both parties. In the situation that both parties don't appoint the risk in contract, except France, Great Britain, etc., most countries and regions believe that the buyer should undertake the risk. This paper adopts this view too, because the buyer benefits most in the title retention, who benefits who undertakes risk, and he possesses the subject matter as his own, which the risk of the subject matter is linked with him closely.