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A Discussion On The Legal Application Of Delivery As A Transfer Element Of Payment Risk

Posted on:2021-05-16Degree:MasterType:Thesis
Country:ChinaCandidate:Z L LiuFull Text:PDF
GTID:2416330647453558Subject:Law
Abstract/Summary:PDF Full Text Request
Article 142 of the Contract Law adopts the principle of delivery for risk transfer,but does not give a clear explanation for the concept of risk in the article.Although risk has been interpreted as payment risk,there are still many cases in judicial practice that apply Article 142 to solve the issue of ownership risk.Behind the confusion between ownership risk and payment risk,it is the confusion between the delivery of transferred ownership in Property Law and the delivery of performance obligation in Contract Law.Through typical cases,this paper sums up the wrong application of Article 142 in judicial practice,and points out the wrong cognition of "risk" and "delivery" in current judicial practice.Through the analysis of the concept of risk in Article 142,we can provide a logical model for judicial practice to judge whether Article 142 is applicable when it involves risk.Through the analysis of the delivery in the Property Law and the delivery in the Contract Law,it is clear that the delivery and the transfer of ownership in Article 142 are two independent contractual obligations,and it also provides a judgment standard for whether the risk of payment is transferred with the delivery.In the case of Article 142,which takes the transfer of delivery as the principle to treat the risk of payment,there are some controversial situations of deliverism.Article144 establishes that the transfer of contract formation is an exception to the risk ofpayment,because it involves transportation,there is a mistake in judicial practice in applying Article 144 to the consignment regulated by Article 145;at the same time,there is a view that the transfer risk of the delivery carrier should be adopted in special circumstances.Based on the case analysis,this paper holds that in the case of adopting the allocation of burden of proof,there are two cases All models have the same way.Because of the transfer of the use of the real estate in the transaction of the real estate,this article holds that Article 142 is also applicable to the real estate.The first chapter "the current situation of the application on transfer rules of payment risk",through the analysis of three typical cases,summarizes three typical mistakes in the application of Article 142 in judicial practice.They are: the confusion of ownership risk and payment risk,the confusion of delivery of property law and contract law,stubbornly consider delivery as the standard of transfer treatment of payment risk.The second chapter "analysis of ownership risk and transfer standard of treatment of payment risk",analyzes the concept of "risk" in Article 142 in detail,combs out the basic framework for the rule of payment risk transfer regulated in Article 142,and constructs the basic logical way for judging the connotation of risk in judicial practice.The third chapter "the definition of delivery as the standard of transfer to treat payment risk",points out that the confusion between ownership risk and treatment of payment risk is essentially the confusion between the delivery of transfer ownership and the delivery of performance of sales contract obligations.Through the analysis of the delivery of property law and contract law,this paper distinguishes the two concepts of delivery.In the case of replacing the actual delivery with the concept delivery,it is considered that the instruction delivery and possession modification are not applicable to Article 142 through the analysis of the concept.The fourth chapter "analysis of the exceptional cases of the transfer of delivery to treat the risk of payment",analyzes the disputes of the rules of transfer to treat the risk of payment in the judicial practice.In road cargo trading,firstly,the concept of road cargo trading is defined,and the applicable situations of article 144 and Article 145 are distinguished;secondly,the existing contract establishment transfer risk rules can solve the problem of risk allocation when the time of risk occurrence cannot be determined with the assistance of the rule of burden of proof allocation.In the real estate transaction,delivery also means the transfer of usufruct.According to the principle of "the interest is consistent with the risk",the real estate transaction also applies to Article 142.
Keywords/Search Tags:Payment Risk, Hand over, Use, Trade on goods in transit
PDF Full Text Request
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