Research About The Mode On Change Of The Ownership Of Special Movables

With the rapid economic development,the transactions of special movable property have become more frequent,and the legal disputes have also increased correspondingly.In such disputes,the main argument is the timing of the transfer of ownership.However,since Article 24 of the “Property Law” doesn't clearly define the requirement of taking effect about the transfer of ownership,it leaves a large space for interpretation,and it also leads to the inconsistency of judicial decisions.In 2012,“Interpretation of the Supreme People's Court on Issues Concerning the Application of Law for the Trial of Cases of Disputes over Sales Contracts”(hereinafter referred to as “Interpretation of Sales Contracts”)was promulgated,and the Article 10 leads more disputes instead of solving the problem above.There are two main comprehensions about the requirement of the transfer of the ownership in Article 24,namely “delivery theory” and “consensus theory”.Besides,there is also a dispute about the “delivery theory” that registration is only a requirement for taking effective or both requirements for taking effective and resisting the third party.As the definition of Article 24 is not so clear,all above seem reasonable.However,the “consensus theory” doesn't conform with the principle of publicity of real right,and the viewpoint that the ownership shall be transferred after registration conflicts with general rule of the transfer of the ownership about ordinarymovables,so Article 24 should be interpreted as taking effect through delivery and resisting through registration.As a result,the change of the ownership of special movables is in correspondence with that of ordinary movables.But it also has its particularity,that is,the owner can't resist the third party in good faith,which is similar to the mainstream legislation in the world.However,the mainstream legislation is “taking effect through consensus and resisting through registration”,and the function of registration is to solve the problem that lacks publication when ownership changes.It aims to protect the security of the transaction.The rule of consensus means that the transfer of the ownership happens when the seller and the buyer reach consensus without publicity.As a result,the phenomenon of twice assignment is very common.In this circumstance,the person who registers first acquires the ownership and can resist the third party.However,the transfer of the ownership of special movable property conforms with the principle of delivery,and the legislation also adopts the rule of resisting through registration in the meantime in China,which results in the co-existence of taking effect through public notice and resisting through public notice.That is,the ownership of the buyer will be restricted due to non-registration,which contradicts with the principle of the property right and obligation right dichotomy system in our civil law.This is the result of the co-existence of the registration confrontation doctrine and the rule of delivery.In addition to conflicts with the legislation,the application of the current rule of special movable property transfer has encountered many problems,and two of them are more serious.First,delivery and registration are both requirements for taking effect and publicity for the change of ownership.They both equip with the forming power,the effectiveness of the presumption of ownership and the credibility of publicity.However,due to the co-existence of them,it not only fails to increase the credibility of the publicity,but also results in a dispute over trusting possession or registration,which weakens their credibility respectively.Secondly,according to thejudicial interpretation and the specific judicial judgments,the standard of judging the good faith of the third party is raised.It means that the bona fide assignee should be without gross negligence.At the same time,the scope of the third party has been greatly reduced,which doesn't conclude the creditor of enforcement,the trustee in bankruptcy and the buyer who does not acquire possession but be registered as the owner.Therefore,the registration confrontation doctrine can only be used in limited circumstances,which can't achieve the purpose of legislation.It's necessary to amend the current legislation since it has many problems.In my opinion,explaining Article 24 of Property Law with the system of acquisition in good faith is rational,as they have the same function and purpose,and the system of acquisition in good faith can balance the interests of the respective parties.In the application of the system of acquisition in good faith about special movable property,the possession of special movable property still has the credibility of publicity.However,the separation of registration and possession increases the third party's duty of care.That is,the third party can't obtain the ownership because of his gross negligence if he makes a deal with the seller without consulting the registration.Therefore,registration is of great importance for judging the third party's good faith.However,registration is not a compulsive requirement to obtain the ownership.If the third party acquires direct possession from the seller,he can acquire the ownership.In conclusion,through the typological analysis about the application of the interpreted legislation,the effect that unregistered buyer can't resist the third party in good faith should understand as follows: the ownership of special movable property is transferred after delivery,but if the owner doesn't register,he will eventually lose his ownership if the third party in good faith acquires the ownership.