The Research For Third Person's Return To Claim In Indicated Delivery Law

For directive delivery in Article 26 of Real Rights Law,it is limited to when the transferor's property is occupied by a third party in accordance with the law,it can replace the delivery of subject matter by means of transferring the claim for the return of the third party to the assignee.For this article,there is no stipulation for the nature of “ assign the right to request the third party to return the original object in lieu of delivery”,the time when directive delivery will come into force,the time when is the change of real right and so on.As a result,many theoretical disputes have arisen in the academic world.Scholars are not consistent with each other and it is difficult to form a unified view.While,in judicial practice,there are many judicial disputes arise from this and contradiction has continued,which also has a negative impact on the application of the system of directive delivery.In terms of the academic view that " restitution right of the third party" has only the restitution right of creditor's right,the restitution right of real right or the competing of two kinds rights,Based on the induction of real cases,the author suggests that in the delivery of instructions,The restitution right of the third party not only has the restitution right of the creditor's right,but also has the restitution right of the of the real right and the situation of competing of two kinds rights.Based on this,the claim for restitution of creditor's rights can be applied directly into the 80 th article with regard to the rules on the assignment of creditor's rights in Contract Law,the notice of assignment shall be taken as the effective element for the directed delivery.When the third party in direct possession of the subject matter receives the notice,the direction delivery party takes effect and the real right shall be changed.With regard to the claim of restitution of property rights,although the completion of the delivery of movable property is regarded upon the entry into force of the agreement between the two parties according to the provision of 18 th article in the judicial interpretation(1)of Property law,the provisions are contrary to the daily trading habits and the principle of good faith.The author argues that it should be applied by analogy that is suitable for article 80 of Contract Law,regarding the notice of assignment as the effective element for the directed delivery,to provide that the delivery of a notice shall not take effect until the third party receives or is supposed to receive the notice.As for change of real right under claim of restitution of real right,according to the delivery theory of creditor's right formalism adopted in our country,instructing delivery lacks the elements of realistic delivery,if the notice of assignment is regarded as delivery,it can complete the formal elements.Therefore,the property right changes only when the notice arrives when the assignment becomes effective.In view of this,the author believes that for the legal problems existing in the delivery of instructions,it should be amended by the opportunity of The Real Right of the Civil Code auditing.The provision of the instructed delivery should be standardized as the notice of assignment for the effective elements.The notice arrived to instruct the delivery coming into force and the changes of real right.By guaranteeing the reasonable realization of the restitution rights to the third party,seek for the balance of convenience and security of the delivery of instructions,so as to ensure the applicability of the system of delivery of instructions in real transactions.