On The Entry Into Force And Confrontation Of The Change Of Special Movable Property

With the continuous improvement of our national standard living and the increasing accumulation of wealth,at the end of June 2017,according to the statistics of the Ministry of Public Security,the number of cars in our country have reached 205 million,and this trend is still fast growing.Although the real estate is more scarcity than the movable property and the economic value is more expensive,but the movable property in our market economy occupies the position still cannot be underestimated.In particular,in relation to general chattels,special chattels have their own value,such as ships and airplanes,which are more valuable than ordinary real estate.Therefore,the property law provides special protection provisions for the protection for such movable property.However,this kind of special protection regulations has caused the academic community of such protection of the qualitative,and movable property rights changes in the logical system,especially in the dual assignment problem has a greater disagreement.The key of the divergence lies in the following aspects.First,compared with the change of the property right of the general movable property,whether the change of the real right of the special property still insists on the delivery as the effective condition of the change of the real right? Second,once the real right changes take effect,the effect of this change needs to be identified in the form of external to the third person.Article 6 of the Property Law of the People’s Republic of Chinastipulates that the establishment and transfer of the movable property shall be delivered in accordance with the law and shall be treated as a change of movable property and publicity method.At the same time,China’s "Property Law" Article 24 provides no registration cannot be against the goodwill of the third person,will be registered as a special movable property elements of the confrontation.Therefore,how can we deal with the ownership of property when there are second differences arising from the coexistence of delivery and registration? Third,do not register not against the goodwill of the third person’s registration confrontation rules in the "Property Law" will produce what kind of confrontation? How does goodwill third person define?The major differences discussed in the theory do not have a greater impact in practice.The reason lies in the introduction of the provisions of Article 10 of the Judicial Interpretation of Contract Law.In practice,fewer courts can truly recognize the legal constitution of Article 24 of the Property Law,and more directly apply to the judicial interpretation of the contract 10 as the basis for the referee,thus avoiding the "Property Law" Article 24 of the provisions,confuse the registration and confrontation system and the relationship between other systems,but also indirectly led to the "Property Law" Article 24 of superficial words.Thus,in theory it should be effective against the problems and changes in property rights of legal logic,sorting out the complex legal relationship,in order to obtain a more accord with the legal logic and the legislative purpose of the results,to achieve the maximum social benefit.This article hopes to draw on the current problems of the judicial practice of the current Chinese scholars on the "Property Law" Article 24 of the understanding and understanding of the differences.The special movableproperty right,on the basis of insisting ontheeffective implementation of the registration,clarifies the scope of application of the registration and confrontation rules,and only through the change of intention between the parties(such as the change of opinion,the instruction of delivery),the retention of sale,the security interest(chattel mortgage)The case of real right,only need to apply the registration of confrontation rules to address the lack of publicity of real rights issues.Under normal circumstances the change of movable property is limited to the actual delivery and simple delivery of the situation,once the effective completion of the actual delivery,ownership changes,the seller lost ownership,the buyer is to obtain ownership.This ownership is confronted with all the world,and there is no need to register the confrontation.It is precisely because ownership is the most complete property right,at the time of establishment or transfer,the law requires the parties to perform different forms of publicity,through the actual possession of the transfer,the world can identify the property has changed the results.But in any case it is necessary to require the actual possession of the transfer,and sometimes will bring a lot of unnecessary expenses,the law in order to take into account the special circumstances of the effect of convenient transactions,and in particular recognize the concept of delivery of this alternative reality delivery requirements changes in the real right can exist only in the parties to the concept of both sides,the appearance of the world did not change.Although the simplification of the transaction process,but the possession of all and separated from the possession itself cannot effectively publicize the contents of the real right.In order to solve the weakening of the publicity effect in this particular case,the legislator has to resort to a special alternative to registering confrontation.If the party does not obtain the actual possession of the subject matter,the owner of the unregistered real right shall,in order to eliminate the risk of third people and property rights,shall go through the formalities of registration,registration or not the right person may be due to the third goodwill and forfeit the ownership.By limiting the scope of registration of confrontation,both in the system to achieve a unified,and will not harm the system.In the discussion of the registration of confrontation rules,many scholars have tried to build their own trading model of multiple trading,and actively discuss when the coexistence of delivery and registration,how to use the Japanese registration confrontation theory to effectively explain this issue,but to illustrate the "Property Law" 24 Leading to the possibility of dual trading,it is ignoring the civil law system and the basic principles of civil law interpretation method is not desirable.To solve the problem of the coexistence of delivery and registration,in addition to theoreticallyexplaining the possible destruction of the system,it can also be solved from the implementation path of specific system.The reason for the existence of the first post-delivery registration or post-registration of the situation,must be one of the two publicity elements of a problem.We only need to strictly check the registration,requiring registration is a prerequisite for the completion of the actual delivery between the parties,so that registration and real right to be able to do exactly the same,you can effectively solve the coexistence of delivery and registration issues,of course,There is no need to explain the possible destruction of the system through doctrine.The theoretical basis of the confrontation in our country is that it can be implemented without a registered person and cannot bear its unregistered benefits.An unregistered real right cannot defend against a third party’s defenses based on goodwill.The legal constitution of the registration confrontation in our country is not as good as that obtained by the goodwill.It can be directly based on the registration countermeasure so that the third party has obtained the real right,nor is it like the Japanese "property law" on the basis of the gleanings.According to the elements to determine the ownership of goods,the registration of the confrontation system itself is intended to enhance the effectiveness of the protection of goodwill third parties,rather than the effectiveness of third parties.The confrontation is only in confrontation,not in effect.As to whether the third person to obtain the natural rights need to combine the specific circumstances to discuss whether the provisions of goodwill made in good faith.For the scope of the third party in good faith,it is first necessary to define whether the unregistered real right and the third person are in a relationship with the real right and exclude the third person who does not belong to the antagonistic relationship.Secondly,for the third person’s subjective need to exclude the assassination of the wicked,only in the third person in violation of the basic spirit of civil law before it will be excluded from the scope of protection,rather than simply informed the third person as a malicious third party,The scope of the three effectively limited to an acceptable range,will not limit the free competition in the market,but also on the unregistered real right to exert some pressure to urge its registration as soon as possible in order to achieve the purpose of registration confrontationlegislation.This paper is divided into four chapters.The first chapter mainly elaborates the legislative situation of the change of the real right of real property in our country,and discusses the problems of the change of special movable property rights from the angle of judicial application and legislation.The second chapter mainly analyzes the mode of change of the real right of real property in our country.In principle,it is based on the formalism of creditor’s rights,insisting on the delivery effect,and in special circumstances,it can change the real right and adoption the confrontation.while explaining the solution to the problem of coexistence of delivery and registration.The third chapter mainly discusses the legal constitution of the confrontation in our country from the aspects of the scope of application of confrontation,the discussion of theory,the definition of goodwill and the third person.The fourth chapter mainly summarizes the previous text on the basis of their own thinking.