Rethink About The Rule For Change Of Special Personal Properties

With the continuous development, many special personal properties, such as cars, ships, aircraft have increasingly tight relationship with people, thereby causing increasingly disputes about the sales of special personal properties. The key to resolute such disputes is the rule for change of property right. In relation to the change of general personal properties, the article 9 and 23 of the “Property Law” have provided clear provisions. The article 9 has provided that the the general requirement of validity for change of personal properties is registration, and the article 23 have provided that the general requirement of validity for change of real properties is delivery. In terms of special personal properties, the provision of article 24 of “Property Law” is unclear and only provide that the change of property rights shall not be used against a third party in good faith rather than a validity requirement for change of property rights. The exceptions prescribed in the article 23 and the obscurity of article 24 lead to great disputes in interpreting the rule for change of special personal property, thereby directly causing contradictions among many judgments of cases and impair the security and efficiency of transactions. In order to resolve such problems, on Mai 10 th, 2012, the Supreme People’s Court issued “Interpretations of the Supreme People’s Court on Issues relating to the Application of Law in Hearing Cases Involving Disputes over Contracts of Sales”and provided clearly the rule of “effectiveness upon delivery + confrontation upon registration”. However, such provisions have led to more disputes. Against this background, this article intend to interpret reasonably the rule for change of special personal properties by analyzing different theory and the legislation in different countries, and based on the “delivery theory” prescribed in article 10 of the “Interpretations of the Supreme People’s Court on Issues relating to the Application of Law in Hearing Cases Involving Disputes over Contracts of Sales”, to analyze relevant problems and find existent problems, so as to perfect relevant system.In addition to the introduction, this thesis is divided into 3 chapters.The chapter 1 aims to analyze different legislation in typical countries. There are two legislation models about the rule for change of property rights, namely concensualism and formalism. Concensualism means property rights are changed upon the consensus of both parties rather than registration or delivery. This model lead to the lack of representation for change of property rights, that is to say, third parties may be not aware of the change of rights, which could impair the security of transaction. Thereby, the rule of defense upon publication is developed. The typical countries are France and Japan. In terms of the change of special personal properties, the legislation of these two countries still take consensus as the validity requirement, and also recognize registration as the defense requirement. Depending on the attitude to recognize the independence of juristic act of real right, the formalism is divided into the mode of real right changing and real right formalism, both of which take registration or delivery as the validity requirement, thereby this model is also called “the rule of publication”. However, in terms of the change of special property right, many traditional countries in civil law system have changed their opinions and taken consensus as the validity requirement.The chapter 2 aims to discuss about the validity requirements to the change of special personal properties. There are 3 comprehensions about the unclear requirements in article 24 of “Property Law”, namely “consensus theory”, “delivery theory” and “registration theory”. Based on analysis of these three theories, this thesis think that “registration theory” lack of evidence because the article 24 of “Property Law” has clearly taken registration as the defense requirement rather than the validity requirement. And “delivery theory” has paradox in legal principal, for example, if the ownership of the buyer taking delivery of possession is recognized as absolute, it shall act against a third party, then making registration as counter requirement is meaningless. If the property rights of possessors are recognized to defend others, so is the article 24 of “Property Law” applicable to special situations such as possession reformulation and indicated delivery? If it is not so recognized, the differentiation between property right and creditor’s rights is unclear. At last, based on reanalyze about “consensus theory” from the point of legislative intents and the inherent advantages of concensualism and etc., this thesis reanalyze the “consensus theory”. The main basis for the registration of antagonism is urge the owner to apply for registration. So from the legislate intention, the registration of antagonism aims to protect transaction security under the background of “consensus theory”. In addition, in the age of globalization, ships, aircraft and etc. may be transferred beyond seas, and many countries have adopted the validity rule of consensus to the change of special personal properties. Under this background, the “consensus theory” shall be supported to establish a unified trading platform and increase transaction efficiency. And “consensus theory” fully respect parties’ autonomy.Chapter 3 analyze the so-called “may not act against third parties”, because we need to answer what means “registration of antagonism” and the scope of “third parties in good faith”. This thesis first discuss different theories about “registration of antagonism” from the perspective of comparative law, thereby we know that a system shall be established to protect the legitimate rights and interests from the perspective of trust protection. That is to say, under the validity requirement of consensus, the legitimate rights and interests of any third party in good faith can be protected by the system of bona fide acquisition. And from the exemplary analysis of “third parties in good faith”, we can draw the conclusion that “third parties in good faith” means parties acquiring property rights in good faith. Then this thesis analyze the relevant requirements of bona fide acquisition and think the bona fide acquisition of special personal properties shall be subject to the requirements of registration. The third section conducts an analysis in category to the special personal properties being sold twice under “consensus theory” and inspect the conclusion.The section 4 analyze the article 10 of the“Interpretations of the Supreme People’s Court on Issues relating to the Application of Law in Hearing Cases Involving Disputes over Contracts of Sales”. Based on analysis the application of conceptual delivery in bona fide acquisition, and the disposal of properties being sold twice, whose transfer has not been valid, this thesis draw the conclusion that, the “delivery theory” cannot reach the purpose not to violate the general principle of civil law and the purpose to protect the efficiency and safety at the same time, and cannot realize the logical order of legislative interpretation.