Research On The Exercise Of The Seller's Recall Right In The Retention Of Ownership

For the first time,the Interpretation of Sales Contract stipulates the seller's recall right in the retention of ownership,which completes the basic structure of the retention of ownership system in China.The retention of ownership is a kind of ownership transfer with stopping condition.The seller can guarantee the realization of his own creditor's right by means of the retention of ownership.Article 35 of the Interpretation of Sales Contract clearly provides that the seller may exercise the recall right under certain conditions.When the buyer does not pay the price or complete specific conditions as agreed,or sells,pledges the subject matter or has other improper disposition,the seller can recall the subject matter.Other improper disposition should include the accretion of property in fact.The seller needs to meet a major premise when exercising the recall right: cause the seller's interests to be damaged.From the point of view of respecting the autonomy of the parties' will,the buyer and the seller agreeing that the recall terms accord with the parties' will should be affirmed.The buyer should not dispose of the subject matter without authorization,but this provision does not mean that the buyer is absolutely prohibited from disposing of the subject matter:the buyer and the seller can agree on the specific circumstances of the buyer to dispose of the subject matter in the retention of ownership contract,so as to limit the condition of the seller exercising the recall right.In order to prevent the seller from abusing the recall right,it is necessary to restrict the recall right within a certain scope.Article 36 of the Interpretation of Sales Contract has become the legal reason to restrict the seller's recall right:the buyer has paid more than 75% of the price and acquisition in good faith by a third party.In order to protect the buyer's expected interest,when more than 75% of the price of the subject matter has been paid by the buyer,the seller shall not exercise the recall right.This regulation can not protect the buyer's expected interest,so it is unreasonable.As an important system to maintain the security of dynamic transaction,the good faith system protects the third party in good faith by restricting the seller's recall right.The determination of the third party's "good faith" should be combined with the subjective psychology,reasonable price and other factors when the property is transferred to a third party.A third party may obtain the ownership and the security right of the subject matter by the good faith system.The Civil Code adopts the registration antagonism to protect the seller,which in principle makes the third party in good faith to be inapplicable in the retention of ownership.In bankruptcy proceedings,the seller exercising the recall right has special rules.There are obvious differences between the recall right in the retention of ownership and the bankruptcy recall right.The seller does not require to cancel the contract to exercise the recall right in the retention of ownership,but the seller exercise the bankruptcy recall right requires the bankruptcy administrator to decide to cancel the contract.In the retention of ownership contract,if one party goes bankrupt,the Enterprise Bankruptcy Law entrusts the bankruptcy administrator with the right to cancel or continue to perform the contract,which becomes the premise of the seller to exercise different recall rights.If the bankruptcy administrator chooses to cancel the contract,the seller may exercise the bankruptcy recall right.If the bankruptcy administrator chooses to continue to perform the contract but fails to perform its obligation,the seller may exercise the recall right in the retention of ownership.However,giving the bankruptcy administrator the right to cancel the contract is not conducive to protecting the buyer's interests and should be denied when the seller goes bankrupt.