System Of Retention Of Title

Ownership reservation system is generally believed to be a mature system to such extent that there is little worthy of further study.In this essay,however,the author exerts efforts to reveal loopholes therein by attempting a pilot study on such system and proposal of author's argument. The author comments on characteristics of the said system on the basis of introduction to legislation therefor in the United States,Germany and China's Taiwan,analyses on the legal form,regulation,scope of object and legislative design,and concludes that determination of ownership reservation nature shall be deemed as the core of such system.Subsequently,the author determines the nature of ownership reservation system of said countries.The following arguments are available theoretically,to wit,the doctrine of ownership transfer subject to suspensive condition adopted in Germany,Japan,and China's Taiwan;the doctrine of partial ownership transfer advocated by Raiser,German jurist, and Kidaitsu,Suzukirokumi,Japanese professors,the doctrine of transfer of ownership and creation of special pledge by Blomeyer,a German professor,and the doctrine of transfer of ownership and creation of security interest represented by the UCC in the United States,which are under discussion herein.In the end,the author proposes his argument, namely,ownership reservation itself is a civil juristic act,the legal nature of which shall be single,that is to say,ownership reservation is an act transfer ownership subject to condition for suspension.Analyses of internal and external effects of ownership reservation on the basis of its nature determination are discussed in ChapterⅢ.In the respect of legal status of the buyer,theorists generally believe that the buyer shall be entitled to expectation,which is rather descriptive than connotative.According to the author,the right of expectation shall be considered essentially as a right of belonging to the buyer which may, however,be deemed as existing property in transaction,a right for assignment or transfer,mortgage and sequestration.~1As maintained herein, theorists attach excessive importance to the right of expectation while ignore the status of real property of the subject matter possessed by the buyer as an important manifestation in ownership reservation system. More importantly,additional to establishment of the right of expectation for the buyer,a right of possession is established for the same,which is independent of title and capable of balancing such title.In terms of the legal status of the seller,the recall right retained by the seller represents the legal status of title owner,and the author dissents the argument of independent nature of such recall right in that it tends to misunderstand ownership reservation.As regards public summons in its external effect, the author introduces and analyses herein doctrine of no public summons represented by Germany,Japan,and France,and doctrine of public summons represented by the United States,Switzerland,and Portugal. And the author concludes in the end that a majority of countries are affirmative in legislation for ownership reservation in terms of possible public summons,which is shared by the author herein.The reason is that public summons of ownership reservation through title registration complies with fundamental theory of real property law.To sum up,ownership reservation is a conditional juristic act,as argued herein.Novelty lies in the trial construction by the author for internal relationship of such ownership reservation system,under which the legal status of the buyer is emphasized in the right of possession and the doctrine of public summons is adopted for protection of the third party. On the basis of comments on legislation of aforementioned countries,the author proposes the registration doctrine to improve the ownership reservation system in China,absence of which in Chinese legislation is negative in making full use of utility of such ownership reservation system.