The Research On The Validity Of Delivery And Registration In The Alteration Of Special Movable Property

Considering the particularity of motor vehicles,aircraft,ships and other special movable property,the Property Law sets up special provisions on the alteration of property rights of such special movable property in Article 24.This provision is considered to establish the rules of registration antagonism for the alteration of special movable property rights.However,since Article 24 of the Property Law is incomplete,the interpretation of the rules of registration antagonism established by it is divided into the following aspects: “consensus theory”,“theory of dual effective requirements of delivery and registration” and “theory of delivery effectiveness and registration antagonism”.From the overall frame of the alteration pattern of property rights stipulated in China's Property Law,the pattern of consensualism is an exception.Therefore,relevant legal provisions must be clearly stipulated when it is adopted.From the perspective of semantic interpretation and systematic interpretation,in China' civil law system,the viewpoint of “delivery effectiveness and registration antagonism” should be adopted when Article 24 of Property Law is interpreted.Although it is the same in name as the registration antagonism in Japan and other countries which adopt the pattern of consensualism in the alteration of property rights,the registration antagonism in civil law of China is substantially different.Under the pattern of the property rights alteration of consensus effectiveness and registration antagonism in Japanese law,the registration of special movable property has absolute resistance.The registration antagonism in civil law of China is premised on the delivery effectiveness,and the validity of registration reduces greatly,but not disappears.We cannot interpret the registration antagonism in Chinese law from the standpoint of consensualism in Japanese law,but should interpret the validity of registration antagonism within the framework of the domestic legal system.In China's law,the validity of registration antagonism is closely related to acquisition in good faith and registration antagonism is reflected in that if the real right holder does not register,it will leave space for the third party to obtain in good faith,then the property right is at risk of loss.If the right holder has registered,the registration can be used as a basis against the good will of the third party,and then there is no room for the third party to obtain the subject matter by invoking the article of acquisition in good faith.In view of the close connection between the registration antagonism and the system of acquisition in good faith,and in order to avoid the confusion of understanding and application,we may consider not to stipulate special provisions to the validity of registration antagonism in the future property rights of civil code.Article 24 and provision of acquisition in good faith in Article 106 in Property Law should be combined,and the validity of registration should be evaluated when merged into the rules of acquisition in good faith.Ship transactions are often trans-regional and international.For the alteration of the property rights,if the same rules for motor vehicles are applied,it may not achieve the desired effect.According to international practice,many countries take the handover of the bill of sale as the sign of the alteration of the property rights of the ship.For the alteration of the property rights of large ships,most countries adopt the idea of consensus effectiveness and registration antagonism.As a major shipping country,China does not need to copy international rules completely,but if it does not agree with international law on major rules concerning the alteration of property rights,it will certainly have an impact on China's shipping transactions.At present,there is an opportunity for the compilation of property rights in the civil code,for large ships,referring to the experience in a comparative context and the pattern of consensus effectiveness and registration antagonism may be more in line with the reality of large ship transactions and more beneficial to the development of foreign trade of ships.In terms of the specific legal provisions,it may be considered to separate the rules of alteration of property rights of large ships from Article 24 of the Property Law,and include them into exclusions stipulated in the “proviso” in Article 23.The definition standard of large ships can be comprehensively assessed in combination with the actuality of ship transaction and the internationally accepted practices.