Research On Difficult Problems Of Indicative Delivery

The instruction delivery was initiated by the German civil law,and the German civil law scholars introduced the delivery securities in the commercial law into the civil law,abstracting into the instruction delivery system.After being accepted by all countries in the world,the provisions of Article 26 of the Property Law of China are the instructions delivery system.China has requested that the third person in the delivery of the law possesses the subject matter of the movable property in accordance with the law,which brings a lot of trouble to the application of the instruction delivery.In addition,due to the insufficiency of the research on the instruction delivery system,it is ambiguous in the details of the instructions delivery,which makes it more difficult to apply the instruction delivery.Whether the delivery of securities such as warehouse receipts and bills of lading should be applied to actual delivery or instruction delivery;in the process of giving delivery,the transferee is directly entitled to the property right or the right to return the claim;the destruction of the subject matter of the delivery is lost or lost.When does the risk start to be transferred;whether the right to return and the right to return in the delivery is a claim for property rights or a claim for claims,or a combination of them.These issues constrain the application of instruction delivery,and a more in-depth study of it is conducive to solving more problems in judicial practice.Indicating delivery is a form of proposed delivery that was originally intended to simplify the transaction process.However,the current situation is that the application of the instructions is everywhere,and the two parties can still be calm when there is no problem.If there is a problem,they will shirk their responsibilities.Combining with specific cases,it is more pertinent to study the theoretical issues.(2018)The three parties in Supreme Court of Justice No.3999 have disputed the ownership of property rights and the risk of property after two delivery instructions.The main reason for disputes is that the current legislation does not specify the time for the change of property rights and the time for the transfer of risks in the goods under the delivery system.The agreement on the matter in the sales contract is also unclear,and there is great confusion when disputes arise.To solve such disputes,we should start with the root cause,that is,the imperfection of legislation.The Supreme People's Court has issued a judicial interpretation stipulating that the effective time of the agreement concerning the transfer of the right to restore property under the directive delivery system is regarded as the delivery time of movable property.Although this stipulation is more in line with the original intention of the directive delivery system,it has great deficiencies in avoiding transaction risks.In order to solve this problem,it is more appropriate to amend it to the effect of real right when the notice reaches the third party.This regulation can pay attention to both transaction convenience and transaction security.Nowadays,with the development of information technology,the arrival of notification to a third party as the effective condition does not excessively increase the burden of the parties.Detailed legal provisions can effectively avoid the occurrence of disputes,disputes can also be quickly and effectively resolved.