Application Of Title Retention In Bankruptcy Procedure

The retention of title, as a kind of atypical guarantee, is to maintain business contract both sides of credit supply and strong guarantee, which leading to a strong vitality in a market economy. As the Supreme People’s Court introduced judicial interpretation of contract law and bankruptcy law, the title retention system in our country has formed basically. In the bankruptcy procedure, the buyer, the seller and the relevant party have a serious conflict of interest, so problems and challenges that the title retention must have to face will be highlighted. This paper will put forward some solutions to the problems and challenges on the basis of combing through the application of title retention in the bankruptcy procedure. This paper will be divided into four chapters:The first chapter will mainly focus on the basic overview of title retention. We will introduce the perspective of the conception of title retention, analyze the nature of title retention, and provide the classification of title retention, and then we will have a introduction of the history of the title retention system, with the examples of Germany, France and Britain, the United States etc. At the same time, the European Union also has made achievements. According to the latest judicial interpretation, the applicable scope of title retention is limited to personal property.The second chapter is about the right structure of title retention. Title retention is a typical representative of equality of rights, where the seller could enjoy the right of such as the recall right, the ownership of the subject, and the buyer shall enjoy the expectant right, the recall right and the claiming of reselling the subject etc. In this part, we will pay the key point on the core of title retention:the recall right, the expectant right and redemption.The third chapter will discuss the applicationand effectiveness of the title retention clause in the bankruptcy procedure. In the first, we will analysis two different modes of admitting or denying the application of title retention in this world. And we will discuss the defects of the latest judicial interpretation on the application of the title retention in bankruptcy procedure, and propose some reasonable explanation. The fourth part is about the defects of title retention in bankruptcy legislation and solutions. The latest judicial interpretation is not perfect, which has some deficiencies. The first is that the contract shall not be due in advance when the manager decided to continue to carry out the contract of title retention. The second is that the loss, which the seller bring about for violating the contract, should not be treated as common benefits debt but to be the ordinary creditor’s right. The third is that a public registry system of title retention is a must to protect the rights of the buyer, the seller and a third party.