Studies On Perfecting The System Of Ownership Reservation

Since the 20th century,the world economic situation has undergone enormous changes.With the tide of the market economy,the system of retention of title has gained new development,which is indispensable in the modern legal system.As a kind of non-typical guarantee system,the ownership retention system can meet the needs of the financial transactions of the market participants.Therefore,more and more scholars regard it as "lubricant" for the market economy development.As the Contract Law of the People's Republic of China does not make provision for the retention of ownership system,however,it is very important in market transactions,the simple expression can not meet the current economic situation.Therefore,in view of the present predicament,the Supreme People's Court promulgated and implemented the Interpretation on the Application of Law in the Trial of Contract Dispute Cases in 2012,it carried out the operation of the ownership reservation from the perspective of the applicable object scope and the protection of the rights and obligations of the parties,and then established position on this special Way of guarantee in China's modern civil law system.For the disclosure methods of ownership preservation and the object of seller's retrieval right,procedures and the protection of the buyer's expectation rights and so on has aroused extensive controversies.In this article,based on the other countries' and regions' legislation of the system of retention of title and related jurisprudence,the author is aimed to exploring some problems in the System of preserving Ownership in China,the purpose is to get rid of the predicaments of this system in publicity,reclaim right,expectation right.Through the study,the author holds that:The system of publicizing the retention of ownership should take the registrationism of distinction in the light of the legal provisions and judicial practice of each country (region),and it needs to Combine with China's actual situation.In the case of registration,a notarization organ may be required to be the registration authority for the registration authority;For the registration matters,can be compromised the approach of the United States and China's Taiwan region.For the formulate of registration,while the registration of movable property,we can use engraving,branding,marking the purchase invoice and other auxiliary publicity.On the Scope of Retrieval Rights,for the additive,processing or mixture according to whether it can be divided to determine.For the fruits,the fruits are treated differently before or after the return.In the case of partial retrieval of the subject matter,a part of the subject matter can be taken as the object range of the retrieval right in the case where the object can be divided.For collateral,collateral,the need to consider whether the registration retention of ownership and the subjective state of the third person,Only the subjective state of the third person is considered for the lien.With regard to the validity of the right of return to the third person,the buyer will set the subject matter of the mortgage,pledge,indwelling,different treatment.In the case of the recall procedure,the procedure for obtaining a mandatory return must be stipulated,and it can only be forcibly withdrawn by litigation if the buyer fails to cooperate with the buyer when the notice is retrieved.On the protection of the right to expect,should give the internal and external protection.In the eyes of internal protection,the seller should be strictly restricted the right to exercise the right to retrieve and determine a reasonable redemption period;In the eyes of external protection,the author started from the three cases:seller transfer the subject matter,the seller of the security interests of the people to apply for enforcement,the seller of bankruptcy creditors to apply for enforcement.