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On The Non-right Disposition System

Posted on:2013-12-11Degree:MasterType:Thesis
Country:ChinaCandidate:Z Q LiFull Text:PDF
GTID:2246330371479405Subject:Law
Abstract/Summary:PDF Full Text Request
As “spirit of the law”, the theoretical power of the non-right action of dispositionlies in its close association with relative civil law system such as legislative mode ofthe real right change, juristic act and bona fide gains. We must study it by applyingplenty of civil law knowledge. After the promulgation of Contract law of P.R.C. thescholars in both academic and practical field discussed the non-right action ofdisposition regulated in article51warmly. So the article tries to describe the non-rightaction of disposition by analysis on the association between the non-right action ofdisposition and the legislative mode of real right change, the appraisal and perfectingsuggestion of the system, the confliction and coordination between the system andother relative system, in order to learn from and ask teachers and classmates.The article argues the definition of non-right disposition is different in differentlegislative mode of real right change. In the mode of autonomy of the will, theagreement of the parties can result in the change of real right. The validity ofnon-right disposition isn’t unanimous in different countries that adopt different modes.Most countries’ civil law has revised this mode to some extent. Most countries don’tadopt this mode because the change of real right in this mode is lack of publicsummons, which is harmful to trade safety and violate legal logic. In real rightformalism, juristic act is divided into imposition act and disposition act. The validityof the imposition act isn’t subjected to the lack of right of disposing of the party, butthe validity of disposition act is pending because of the lack of right of disposing ofthe party. In the creditor’s right formalism, juristic act isn’t divided into impositionact and disposition act. The concept of the agreement of real right independent fromthe agreement of credit doesn’t exist. Only the combination of valid contract forcredit and registration of immovables or delivery of movables can result in the changeof real right. One side, this mode has the advantages of pure autonomy of will, on theother side, it overcomes the disadvantages of the extremely abstract real right’s formalism. In the mode of autonomy of the will and creditor’s right formalism, thedefinition is the contract signed by the non-right of the subject matter. The typicalexample is the contract of selling other’s subject matter. In the mode of real rightformalism, the definition is juristic act of real right, carried out by the non-right party,aiming to result in the change of real right of the subject matter. In the mode offormalism of creditors rights, the definition is comprehensive legal facts of publicity.The non-right disposition system in our country is mainly regulated in Article51of Contract Law. The article argues that our country have adopted the mode ofcreditor’s right formalism. In this mode, because the abandoned of the concept ofdisposition act in Germany civil law, the contract of the non-right disposition inarticle51of contract law refers to the contract for credit and its validity is pending. Interms of this regulation, the contract is invalid if the true obligee won’t approve andthe party of non-right disposing can’t obtain the right of disposing after signed it. Itmust be emphasized that invalidity here refers to not the invalidity of disposition actbut the validity of the non-right disposition contract, that is, the business contract isinvalid. It can’t be interpreted that the business contract is valid and the dispositionact is invalid. The drawback of taking the non-right disposition contract as contract ofpending validity lies in: Firstly, it is harmful to business safety. Secondly, it violatesthe principle of the freedom and relativity of contract. After the born of the law of realright, more and more scholar hold the point that he non-right disposition contract isvalid contract.Then the article describes the conflict between the non-right disposition systemand relative system, concluding that the legislation must ractify the non-rightdisposition contract as valid contract, so that the non-right disposition system can beintegrated into civil law system and coordinate with other relative systems. Then thecivil law system can operate efficiently. Firstly, the artile talks about the relation ofthe non-right disposition system and bona fide gains system. If the contract is invaildwhen buyer get the real right of subject matter by bona fide gains system, there willbe a lot of contradiction.So the premise of the bona fide gains is vaild contract. Thefunction of bona fide gains system is hinder the real right of obligee. The bona fidegains isn’t originalacquisition nor derivative acquisition, it’s between originalacquisition and derivative acquisition. So when the buyer get the real right bybona fide gains system but he or she don’t want to pay the mony, the unauthorizedman can demand the money by contract. A difficult question is solved. Secondly theartile talks about the relation of the non-right disposition system and unjustenrichment system.If the buyer get the real right of the subject matter and the buyerhave not payed, the obligee can demend unjust enrichment to buer or theunauthorized. If the buyer have payed the obligee can only demend unjust enrichmentto the unauthorized.The range of unjust enrichment that the obligee can requiredepend on the unauthorized people is in good faith or not. If the unauthorized peopleis in good faith the unjust enrichment is the carrying value. If the unauthorized is notin good faith the unjust enrichment is value of the subject matter.it’s good toanalogically apply to negotiorum gestio when the unauthorized man sell the subjectmatter for higher price to forbid treatment without cost.
Keywords/Search Tags:Unauthorized Disposition, Validity of Unanthorized Disposition, Transfereneeof Property
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