Study On The Ownership Of Multiple Transactions Of Special Moveable Property

Nowadays, the speed of economic development is fast, the number of such special movables as ships, aircrafts and other vehicles increases daily. Due to the great value of special movables, the rule to change property right of special movable is different with general property, which adopts the rule of real estate. There are two main patterns ---- Intentions of Credit Rights and Formalism. France and Japan are the representatives of the former. It can change the right of property of special movable, only according to the debt contract of parties; it does not require registration or delivery. The rule is convenient to transaction, but it may be harmful to transaction. Therefore, it also establishes registration antagonism to guarantee security. While Formalism, includes Property Rights Formalism and Creditors’ Formalism. Under the former pattern, it has the existence of an independent real right behavior, while Creditors’Formalism has not. But they have some same point, which require publicity of property rights. Under this pattern, publicity can change property rights only. Therefore, under the pattern of Intentions of Credit Rights, effectiveness of publicity is antagonism; while under the pattern of Formalism, publicity decides effectiveness of property rights.Generally speaking, property rights change is Creditors’Formalism in China, through delivery can change property rights, but effectiveness of registration is antagonism of special property, thus this pattern brings some questions. The effect of "Property Law" Article 24 is limited:First, delivery is effective element; the person can obtain ownership of the subject-matter only through delivery, though the third person has registered, he can not obtain the ownership. The third person is still creditor, he can not withstand the unrecorded real right person, therefore registration is not necessary.Second, "Bona Fide Acquisition" is to guarantee security, the third person can obtain the ownership of property base on publicity.But according to "Property Law" Article 106, delivery is essential to the third person, thus Bona Fide Acquisition is only applied to idealistic delivery. Special property has two ways of publicity:possession and registration, the third person only has one way can not obtain entire property right.The change in special movables’ property right is more complex, thus resulting in greater risks.Under the pattern of Intentions of Credit Rights, effectiveness of publicity is antagonism; while under the pattern of Formalism, publicity decides effectiveness of property rights. Intentions and Formalism have connection. To special property, delivery is effective element and registration is antagonism, it increases autonomy of will as the effective element to ensure the stability of the legislation. However, we should take Property Rights Formalism in the future Civil Code. As Germany, our property law has distinction between property rights and creditor’s rights. Creditors’ right is relative right; the intention of parties can change the property. Property rights are absolute rights; so only publicity can change property.Therefore only Property Rights Formalism can accord with character of special movables and protect the security of transactions.