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Study On The Allocation Of Rights Of The Transfer Of Ownership For Security Purposes In Insolvency Proceedings

Posted on:2019-06-23Degree:MasterType:Thesis
Country:ChinaCandidate:Q HuangFull Text:PDF
GTID:2416330548453049Subject:Civil and Commercial Law
Abstract/Summary:PDF Full Text Request
As a kind of special security which requires the transfer of ownership,the transfer of ownership for security purposes has been a debated topic for a long time in the field of security.In other countries like Germany and Japan,this institution has been developed and perfected in practice by jurisprudence and doctrine.In our country however,disputes about it still concentrate on the basic theoretical issues such as its existing value,validity and regulation mode,rather than to consider what kind of problems this institution can solve in practice,as well as how to solve these problems.It is undeniable that there exist various forms of securities similar to the transfer of ownership for security purposes within our country's market transactions.The proper meaning of legal development is that theoretical research should combine with the needs of economic and social development,in this way improving relevant institutions.Thus,on the basis of analyzing judgments involving insolvency of the transfer of ownership for security purposes,the author uses the barriers surrounding the cohesion in this institution and insolvency as the main angle to discuss the allocation of rights of the parties in insolvency proceedings,in this way enriching our theory and benefiting our practice of the transfer of ownership for security purposes.In addition to the preface and conclusion,this article is divided into three parts as shown below.The first part concerns the dispute about the allocation of rights of the parties concerned in insolvency proceedings.After reviewing the existing relevant cases,the author concludes there are three kinds of trial ideas.The first one refers to the transfer of ownership for security purposes being invalid and the parties being mutually liable to return interests gained from each other.The second one refers to the contract of this security being valid,but not having the effect of property rights which is expected by the involved parties.The status of the parties is equivalent to the status of ordinary creditors and debtors in insolvency proceedings.The third one refers to the transfer of ownership for security purposes being valid and the obligee having priority rights in insolvency proceedings.After putting forward questions,the author separately analyzes the reasons for the ambiguity of the judicial practice from three angles,namely,the vague provisions of the legislation concerning the transfer of ownership for security purposes,the unclear nature of ownership in this institution and the disputes about the basis of insolvency rights.This section aims to reveal the inconsistencies in the process ofthe transfer of ownership for security purposes and bankruptcy laws.Clarifying and revealing this problem will improve our ability to study how to apply this security in insolvency proceedings.The second part concerns the premise of allocation of rights to the parties in insolvency proceedings.The transfer of ownership for security purposes is not clearly defined in our legal system,thus the core aim of this part is to discuss the preconditions of allocating the parties' rights in insolvency proceedings.Firstly,it is the primary precondition that admits the validity of the transfer of ownership for security purposes.The author believes that the main reasons for the objection of this institution,liquidity contract and defect of publicity,are not necessarily established,which leaves room for further discussion about the topic of this article.Secondly,it being the key point in deciding the legal composition of the transfer of ownership for security purposes.The author takes the Property Law system and the Insolvency Law theory into consideration,and then examines the legal composition of the transfer of ownership for security purposes in our country.Finally,referring to relevant German practical experience as well as the perspective concerning repayment ways of the transfer of ownership for security purposes and restrictions on “ownership” according to the purposes of Insolvency Law,the author tries to demonstrate the transfer of ownership for security purposes has priority in insolvency proceedings.The third part concerns the specific allocation of the parties' rights in insolvency proceedings.On the basis of theories constructed above,this part mainly discusses the specific problems that may be involved in insolvency proceedings.During the process of insolvency,it is necessary to discuss how the parties should exercise their rights,such as the right of priority,the right of taking back his or her own property,the right of repeal,the right of offset,and how to arrange the order of priorities.Such issues all have the need for independent discussion and research,so as to ensure that the security purpose of this institution is realized in insolvency proceedings.To summarize,recognizing the effectiveness of the transfer of ownership for security purposes is a logical starting point which gives this institution independent discussion value in insolvency proceedings.Furthermore,the ultimate purpose is to clarify how to apply this security in insolvency proceedings and what rights the parties concerned have.This article thusly focuses on the contradiction of the transfer of ownership for security purposes in the process of insolvency,defines the premise,and discusses in which ways the parties exercisetheir rights in insolvency proceedings.This was done in order to provide some new ways of thinking to study on the transfer of ownership for security purposes.
Keywords/Search Tags:the transfer of ownership for security purposes, composition of ownership, measurement of interests, principle of conversion, priority right of repayment
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