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Research On The Recalling Right Of The Retention Of Ownership

Posted on:2019-04-19Degree:MasterType:Thesis
Country:ChinaCandidate:J JiangFull Text:PDF
GTID:2416330596952346Subject:Civil and commercial law
Abstract/Summary:PDF Full Text Request
The Interpretation of the Supreme People's Court on the Application of Law in the Trial of Sale and Purchase Contract Disputes Cases(hereinafter referred to as the“Judicial Interpretation of Sale and Purchase Contracts”)regulates and clarifies the recalling rights in the retention of title.However,in practical applications,there are still many different opinions on its understanding,and the legislation has not given clear guidance on how to exercise the right of recalling.Therefore,it is necessary to analyze various theoretical viewpoints.Regarding the legal nature of the ownership retention,the theoretical community has always had different views.The essence behind the differences is the dispute between form and substance.In general,we can divide various viewpoints into two categories: one is retention of ownership in the perspective of ownership transfer,and the other is retention of ownership in the perspective of claims security.The main viewpoints of the legal attribute of ownership reservation from the perspective of ownership transfer are the ownership transfer theory with the cessation condition,the partial ownership transfer theory and the distinguishing ownership interest theory.From the perspective of creditor's security rights,the main points about the ownership reservation include the special pledge rights theory,security property rights theory and security rights theory.Those viewpoints and theories have their own bright spots,and they all have limitations.The transfer ofownership with attached conditions is the legal form of ownership retention,and security interest is the essence of ownership retention.The nature of the retention of ownership cannot be rigidly adhered to the form but must return to the essence.Therefore,the retention of ownership should be essentially a type of atypical security.The seller retains the formal ownership to achieve the purpose of guaranteeing the price of the creditor's rights.To analyze the legal nature of the seller's right of recalling,the main dispute lies in the effect of the exercise of the recalling on the validity of the contract.There are four theories about this issue.The first one states that the seller's exercise of reclling right must be based on the cancellation of the sale contract.Such a legal system design focuses more on protecting the interests of the buyer and neglecting the seller's security interests.The second one states that when seller is exercising the recalling right,the contract was not lifted.If the buyer does not redeem the subject matter during the redemption period,the contract will end.The fourth one considers that recalling right is similar to the execution proceeding.This theory accurately reflect the legal nature of the retention of ownership as a non-typical warranty.However,such an expression is not accurate,because the exercise of the right of recalling does not directly lead to the re-sale of the subject matter.The buyer still has the possibility of redemption.The nature of the right to recalling rights depends on its role in the ownership retention system.Retrieving does not mean the cancellation of the contract.In effect,it cancels the prior payment obligation of the seller's transfer of the subject matter,to restore the contractual obligations of both parties and perform the status at the same time.Article 35 of the Judicial Interpretation of the Sale and Purchase Contract stipulates three types of situations in which the seller can exercise the right of recalling.First,if the buyer has already paid more than 75% of the total price,the seller's right to retrieve will be restricted.The ownership retention system guarantees all the price claims,not the 75% of the price claims.This restriction is inconsistent with the original intention of the ownership retention and should be abolished.The unauthorized disposition of the target object by the buyer is thestatutory situation to exercise the right of recall.The unauthorized disposition herein shall be interpreted in a broad sense,including actions like intentional destruction and abandonment of the subject matter.There are currently no specific rules in the law for the sellers of how to achieve their right of recalling.The notice should be the pre-procedure for the seller to exercise the right of recalling unless the behavior of the buyer has constituted a fundamental breach of contract.Regarding the specific methods of exercising the right of recall,the parties may either obtain it by themselves or forcefully obtain it through judicial procedures.The exercise of the right of recalling is not an end,and the buyer can eliminate the breach and retake the subject matter within the redemption period.In the determination of the redemption period,in addition to the agreement and the seller's designation,a statutory deadline for foreclosure should also be established.If the seller does not cooperate with the redemption,the buyer can be reasonably guided to actively exercise his right to redeem.The buyer has a major interest in whether to sell the subject matter.In addition to the right of redeeming,the buyer also should have right to ask seller for reselling the object.If the buyer does not redeem the object,the seller can sell the target object again.If the buyer does not redeem or ask for another sale,and the seller has not sold the subject matter,the sales contract will be lifted.The seller will not need to return the price charged and the buyer will not have to pay for the subject matter.The exercise of the recalling right to retrieve not only involves the legal relationship between the buyer and the seller,but also conflicts with the property rights of the third party on the subject matter.In principle,the seller can exercise the recalling right if the buyer resells,pledges,or otherwise improperly punishes the sale,without the seller's authorization,but at this time,the seller's right to retrieve would conflict with the system of good faith acquisition and the lien system.Whether the third person can acquire the right depends on whether the behavior is in conformity with the constituent requirements for goodwill.At this time,we must pay special attention to the judgment of the standards of goodwill of third parties,and it isnecessary to focus on whether the actions of both parties are in line with trading habits.If The third person obtained the ownership of the subject,based on the subrogation theory of guarantee,the third party can extend the seller's right of retraction to the proceeds from the reseller's resale.Secondly,when a buyer sets up a chattel mortgage for a third person without authorization on the subject matter,if the chattel mortgage has not been registered,the third party can still obtain the mortgage right.But its rights do not have the effect of fighting against the goodwill of the third party and do not have the effect of opposing the seller's right to retrieve.Finally,as the issue of whether a third person can establish a lien on the seller's property in relation to the buyer's debt,a broad understanding should be given of the “debtor's movable property” stipulated in Article 230 of the Property Law.Whether the lien holder knows that the buyer is not the owner of the property,a lien may be established as long as the lien is satisfied.As a statutory security right,the validity of the lien has priority over the agreed security right.Ownership retention as a security of agreement,it is difficult for the seller to claim the right of repossession from the lien holder.The best way to seek balance of interests in the dynamic confrontation of rights and maintain transaction security is to establish a registration publicity system for ownership retention as soon as possible.Regarding the publicity of the retention of ownership,various countries have legislation in both registration and non-registration approaches.Non-registrationism does not require the retention of ownership to be publicized.The parties only need to reach an agreement.Retention of ownership means legal effect.Registrationism requires both buyers and sellers to register for the retention of ownership.Without registration,ownership retention cannot be effective or against the third person of goodwill.For special movable property,we should establish the counter publication legislation system.For other movable property,there is no need to register,to achieve a balance of rights between the seller and the third party.On the one hand,by means of marking,branding and pasting on all relics and endorsement of invoices,the third person is informed of the burden of rights on the subject matter and the third person's burden of checking theregister is reduced.On the other hand,the notice registration system should be introduced to replace the transaction registration system,simplifying the content of the ownership retention registration as far as possible,and resolving the concerns of buyers and sellers over disclosure of transaction information.
Keywords/Search Tags:retention of ownership, the recalling right, bona fide Acquisition, notice-filing
PDF Full Text Request
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