Right Disposition And Analysis

The discussion of legal effect of non-right action of disposition derived from the Contract Law item 51 is significantly important to the construction of china civil law system. The treatise discusses the design of non-right action of disposition from various aspects and holds the view that non-right action disposition should not lead to the contracts' invalidation.1. Viewing from countries with advanced civil law systems.As to the civil law, , the representative of creditor' s right theory real right alternation mode, prescribes that disposing others' property, typical non-right disposition, as invalid. But modern scholars studying civil law of French start to realize that it isn't in reason, and they tend to hold the view that disposing others' property is relative invalid. So the contract should be valid. , the representative of real right theory real right alternation mode, takes the real right act theory. It considers that if non-right action of disposition only makes the legal effect of real right act uncertain, while the debt contract still valid. Common law takes the view that the actor should take responsibility of what he has done with the precondition of a valid contract. Even analyzing the consideration theory of common law, the non-right action disposition wont lead to the lack of consideration then make the contract invalid. The international demonstration law, representing the developing trend of world law, even expresses the theory that non-right disposition has nothing to do with validation of contract in a more explicit way in their legislation. Hence the countries with advanced civil law all think or tend to think that non-right action of disposition contract shouldn't be invalid just only because of the action of non-right. China civil law should also follow the trend.2. Viewing from basic theory of law economics.Analyzing the externality of non-right disposition, we can draw a conclusion that non-right disposition should be allowed to take place with the precondition of clarifying the rights and obligations of the actor explicitly. Since the actor will negotiate with obligee and alienee according to the market mechanism. Via entering into agreement, the three parties' personal interests will all close to social interest. Thus forms the best state of Pareto' s theory. The responsibility rule of law economics further states that if the non-right disposer gets the right through legal compensation instead of market business, he or she can use resource more efficient and cost less. The key point of system design doesn't rest with forbidding non-right disposition but ascertaining non-right disposer' s compensation standard. The general conclusion of economic analysis method is if the other party of business is aware of or should be aware of the one he or she deals with is unauthorized, then the contract is invalid. Otherwise the contract should be valid.3. Viewing domestic discussion on non-right disposition of contract.There are endless discussions on whether the non-right disposition contract is valid or not in domestic. In the treatise, I gave my opinion on it. The gist to judge a contract' s legal effect is item 52 of Contract Law. According to this item, only when non-right disposition harm country' s interest or the other party of business still conduct the business after knowing that the one he deals with is unauthorized, the non-right disposition contract is invalid. The former invalidation is because of consequence of behavior, the latter invalidation is because of the other party' s malice.4. Viewing connection between non-right disposition and correlative system of civil law. Firstly, it is against the relativity principle of contract. Secondly, it is against the incapable payment theory of traditional civil law. Thirdly, it is against right blemish surety principle of contract law' s item 150. Fourthly, it is against the bona fide acquisition system. Fifthly, viewing three illegal profits circumstance derived from non-right disposition, it wont make too much difference in protecting obligee' s interest whether we think the non-right disposition' s legal effect is uncertain or effective.5. Using the basic theory of the hermeneutics of Civil Law to interpret item 51.Via literal interpretation, systemic interpretation and purpose interpretation to contract law item 51, a conclusion is to be drawn that the original legislative purpose of this item is to make sure that non-right disposition contract is valid. However, there is loophole in it. It has antinomy. On the other hand, it is against the basic principle of Civil. Law. In order to mend the loophole we should complement it with contract law item 52. If the case of item 52 prescribed doesn't show up, the contract should be valid.