Regulation Of Real Right Change Of Special Movables Under The Doctrine Of Registration Confrontation

Article 24 of “Property Law of the PRC”,as an exception to Article 23,makes it clear that the creation,change,transfer and elimination of real rights,of any vessel,aircraft and motor vehicle,etc,if it is not registered,may not challenge any bona fide third party.Therefore,the theory and practice gradually form the general theory that taking delivery effect and registration confrontation as the real right change mode of special movable property.But in detail,why do we need to specially regulate the change of the real right of such movable property? What is the reasonable basis of setting up the registration antagonistic requirements for the special movable property?Different from the consensual effect and registration confrontation model,does the delivery effect and registration confrontation model fit the current real right change system? The seemingly undisputed theory of real right has caused the confusion of applicable standards in practice.Therefore,aiming at the problems that have already appeared in practical application,this paper dialectically analyzes the current real right change mode of special movable property mainly around motor vehicle,in order to achieve a balance between transaction efficiency and transaction security.In addition to the Preamble,this paper is divided into four parts.The first part is mainly about the existing disputes about the change of the real right of the special movables,including the interpretative dispute and practical dispute.Since Article 24 of “Property Law of the PRC” does not positively stipulate the real right changing requirements of special movables,it is more of an incomplete law,which needs to do systematical interpretation and teleological interpretation incombination with the whole property law.There are differences in the understanding of the real right changing mode of Article 24 in the academic circle,and the main ideas include Consensus theory and Delivery theory.At the same time,although the real right change mode of special movables delivery effect and registration confrontation seems to have become a common theory in judicial practice,the case analysis shows that there are still different identification on the definition of special movables,the determination of good faith and the scope of the third party in the application process.The second part focuses on the theoretical structure of the Doctrine of Registration Confrontation.The author attempts to dialectically analyze the theoretical structure and logical system of the Doctrine of Registration Confrontation from the perspective of development origin.French law,as the birthplace of the Doctrine of Registration Confrontation,adheres to the principle of freedom and immediate acquisition of ownership in respect of real right change,namely adopting the real right change mode of consenting effect and publicity confrontation.Apply the Doctrine of Registration Confrontation in France did not lead to academic disputes,The discomfort caused by the introduction to Japanese law prompted scholars to put forward a variety of theoretical construction theories to explain it,but still failed to form a unified point of view,which made it a long-standing debate focus in the field of Japanese property law.Although China adopts the real right change mode of delivery effect and registration confrontation in the field of special movable property,which is different from Japanese mode,because of the acceptance of the principle of absolute property right in German law,there are contradictions in the application of the elements of registration confrontation both in Chinese law and Japanese law.Therefore,how to understand the theoretical basis of the Doctrine of Registration Confrontation in our country,can we find the answer from the Japanese property theory.The third part is the analysis of the Doctrine of Registration Confrontation in China.Based on the experience of German and Japanese legislation,China has formed a real right system which takes the mode of real right change of formalism of creditor’s rights as the principle,and the mode of real right change in the ideology and in the mixed doctrine as the exception.Under the premise of the application of Article24,the author expounds and analyzes the practical dilemma of the Doctrine ofRegistration Confrontation,and combines with other interpretive ideas put forward by scholars,so as to complement and correct the real right change mode of special movable property in China.The fourth part focuses on the improvement of the rules of real right change of special movables.Whether it is mode of delivery effective and registration confrontation,or mode of consensual effective and registration confrontation,or registration effective mode,there are unexplained points.Then can we get rid of the shackles of the mode of publicity confrontation,get rid of the influence of the extraterritorial mode,and explore the mode of the real right change of the special movable property that fits the legal system of our country? In order to perfect the rules of the real right change of special movables,the author points out that it is not necessary to take registration as a confrontation element to the change of special movables.However,the motor vehicle should be included in the scope of general movable property,and apply Bona Fide Acquisition System to protect the third party.