Research On Unauthorized Disposition

This article begins with the concept of disposition, then research on the existingforms and legal validity of unauthorized disposition action by comparing method,inductive method and historical method etc. It analyses troubles in the presentlegislative system referring to unauthorized disposition action in China by comparingthe same legislative systems and legislative function among Germany and France. Onthe basis of accurate concept, this article tries to define the existing forms ofunauthorized disposition action clearly, at the same time, it tries to construct scientificlegislative systems by drawing lessons from other countries.Besides preface and conclusion, this paper is divided into4chapters.The first chapter is to introduce the concept of unauthorized disposition action.In generally speaking, unauthorized disposition action means disposing withoutdisposition qualification, but there is much difference between German law andFrench law about it. In Germany, disposition action means the act of transfer propertyright, it is different from obligation act which only bind parties by contraction. InFrance, disposition action contains all act in the whole process of sale and barter.The second chapter is to introduce the existing forms of unauthorized dispositionaction, it reveals forms of transfer by owners against disposition ban and transfer bynon-owners without authorized permission. The disposition ban can be prescribed by the law provision or the court order, and it also can be made by promise between theparties. The ban made by law and court aims at the interest of the particular person byrestricting the disposition qualification of the owners. If the owner dispose the objectagainst the ban, the disposition act is invalid. The promise referring to depriving thedisposition qualification of the promisor has no effect on the transfer of the propertyright, it only creates obligation to the promisor. But in the assignment contract, thispromise must be obeyed, it will be invalid if the promisor assign the obligatory rightwithout obeying the promise. In addition, in the codes of Germany prescribe someabsolute restrictions provisions, for example, in the civil code, the dispositionqualification of co-owner be restricted absolutely, in the bankruptcy law, thedisposition qualification of bankrupt debtor also be restricted absolutely. Theirdisposition acts against the restrictions provisions are absolutely invalid.The mainly existing form of unauthorized disposition action is the non-ownerstransfer the property without authorized permission. In general, it reveals the actionthat the borrower, the custodian and other debtors transfer the property right of theirpossession. In addition, it contains some special action forms in different countries. InFrance, for the same object, the owner contracts with two buyers respectively, thelater contract action is considered as unauthorized disposition. In Germany, it containsthe act that the conditional buyer transfer the property right of object.The third chapter is to introduce the legal validity of unauthorized dispositionaction. The owner transfers property right against the ban, the action will beconsidered relative invalid or absolute invalid according to the nature of the ban. Inanother situation, the non-owners transfer the property without authorized permission,disposition qualification is seen as the elements for transfer of property rightaccording to the Theory of Distinction, so without the disposition qualification willeffect the validity of transfer of property right, its validity is pending, and the contractis valid. The pending status is temporary and it can be ratified through particularcorrecting ways which prescribed by the law. The purpose of the ratification provisionis to converse the action to be valid and then to promote the prosperity of transaction.There is something difference in France, if the non-owners transfer the property without authorized permission, the contract is invalid, and the transfer of propertyright is invalid either, moreover the parties can do nothing to ratify the action.In German and French law, there are both provisions about bona fide gaining. Itmay occur the consequence of bona fide gaining when the party disposes withoutpermission. The object of bona fide is ownership, it indicates that the third partysuppose that the seller to be the owner, but in fact he is only in possession withouttitle. If the third party believe the owner can dispose the property without dispositionrestriction, this bona fide doesn’t belong to the object of bona fide gaining system, thethird party can’t claim gaining the property right according to bona fide gaining rules.But there exist special rules for the bona fide system, it can be appliedcorrespondingly if the provisions state "apply the provision of bona fide gainingcorrespondingly", even though the third party suppose the seller disposes withoutqualification restriction.The fourth chapter is to introduce the troubles in our present legislative systemand try to reconstruct it. The20th provision of Real Right Law of the People’sRepublic of China, by learning the system of advance registration notice from theGerman civil code, stipulates it is invalid if the seller transfer the object against theadvance registration notice. It is clumsy for the provision safeguards the transactionorder by depriving the owner’s disposition qualification. The191th provision of RealRight Law prohibits the mortgagor from alienating the mortgage property. It is againstthe purpose of mortgage as misunderstanding the nature of the mortgage. The51thprovision of the Contract Law is integrated with the rules of the German law andFrench law, in consequence, it is not logical with the other system in the civil code.The Chinese legislature is lack of ability to reconstruct the third mode whichdifferent from the German and French modes. Therefore we should draw lessons fromthe other countries, in my opinion, the German mode is more effective and scientificto resolve disputes about unauthorized disposition action and we can learn from it.