On Principle Of Publicity And Its Exceptions

Chinese famous professor Xie Zaiquan said that the tenets of legalizing real right,one res with one right and act of real right without reasons were being reconsidered. However, he spoke none of the publicity principle. Is it because it is really perfect? So-called exceptions such as retention of title, proprietary security, mortgage of movable property and especially the consignation in notion make me convinced that the publicity principle is not flawless at least in terms of movable property.This thesis consists of several parts as follows:Chapter one defines the basic concepts of this thesis and discusses the connotation of publicity and the publicity principle. In this part, I express my own opinions about the existing disputes in academe, that is, the way of publicity for movable property is not consignation but possession and the way of publicity for real property is not the act of registering but the state of being in registration. The most important of this part is to explain definitely the publicity principle, which means assignment of real right is not effective without publicity. It sets a target for this thesis and also provides precise basis for criticizing the publicity principle in"draft of real statute".Chapter two lists and analyses the exceptions to the publicity principle. In terms of movable property, the exceptions include retention of title, proprietary security, mortgage of movable property and especially the consignation in notion (indirect possession). However, this part primarily testifies that consignation in notion (indirect possession) is different from the others in nature, because only consignation in notion (indirect possession) constitutes a probable threat to the publicity principle, while the other three are really special exceptions. In terms of real property, exceptions include at most some movable property like airplanes, boats and ships and so on, which are dealt with like real properties. If"draft of real statute"is considered, there is one more exception --contracting and running of land. Therefore, exceptions to publicity of real property are authentic exceptions.Chapter three makes a thorough rethinking of the publicity principle. Firstly, the part reveals the flaw in value if the doctrine is applied to movable property-not only confining autonomy of private law, but also sacrificing the efficiency of transaction. It reveals that formalism creates a concept of consignation in notion just to defend its tradition and avoid the flaw in value, and thereafter preserve the lie that the doctrine of publicity applies to both movable and unmovable property perfectly in form. Secondly, this part admits the factuality of the application of this doctrine to real property. Thirdly, this part reunderstands the publicity principle and comes to the conclusion that the publicity principle applies only to real property in fact, while publicity for movable property is an undeserved reputation; for movable property,...