Study On Seller's Recalling Right Of Title Retention

There are many disputes over the nature of title retention.According to China's legislative regulations and judicial practice,it is more appropriate to characterize them separately from the legal form and the economic substance.From the view of legal form,it is a conditional contract for the transfer of ownership.From the view of economic substance,the reason why the ownership is not transferred at the time of delivery is to guarantee the payment of the buyer's price with ownership.For this reason,the nature of seller's recalling right is asking for compensation,and the seller's exercise of the seller's recalling right is a means to achieve the effectiveness of the guarantee.The first issue in the exercise of the seller's recalling right to retrieve is the scope.Considering no privately-owned land in our country,only houses worth discussing in the real estate.With the establishment of the title retention registration system,there is a problem that title retention registration in houses is unnecessary or leads to conflicts,and the advancement of housing rights on rural homesteads has also left the only room for the title retention of houses.Through the interpretation of relevant laws and regulations,it is not difficult to conclude that the interest of the subject matter belongs to the buyer during the legal possession and use of the subject matter by the buyer.The scope of the exercise of the right to get back when the subject matter is re-disposed or appended is more complicated.It needs to be analyzed in accordance with the specific circumstances.In this process,the principle of protecting a third party in good faith and the general rules of attachment must be followed.The seller's exercise of recalling right need not be based on a fundamental breach of contract.It can be exercised as long as the contractor's principal creditor's rights or security interests are damaged.After the registration system is established,the unregistered will not affect the seller's exercise of the recalling right.The factors that cause the seller's recalling right to be retrieved are only obtained by the third party in good faith.The restriction of “the buyer has paid more than 75% of the total price of the subject matter” is questionable.Sellers can exercise the recalling right through negotiation.The Civil Code provides sellers with a public remedy that “refers to the procedures for the realization of applicable security rights”.This includes the seller's ability to request a court auction and the sale of the subject matter,as well as the special procedures for realizing security rights.In this process,the exercise of the recalling right will be wiped out by the exercise of the buyer's right of redemption.Under the liquidation model of disposition in China,the seller can only resell the subject matter after recalled..The application of the seller's recalling right in the bankruptcy proceeding should distinguish between the seller's bankruptcy and the buyer's bankruptcy.In the case of the seller's bankruptcy,if the administrator chooses to terminate the contract,the seller's right to recover the debtor's property held by others in the bankruptcy law is used instead of the seller's recalling right;If the manager chooses to continue to perform the contract,it is consistent with the rules for the exercise of the recalling right.In the case of the buyer's bankruptcy,if the manager chooses to terminate the contract,then the seller exercises the general right of revocation under the bankruptcy law instead of the seller's recalling right;if the manager chooses to continue to perform the contract,The specific rules for the exercise of the seller's recalling right will change,and its nature is also controversial.In the title retention contract,the balance of interests between the seller and the buyer runs through.The seller guarantees the payment with the ownership,and the buyer has the right to expect the ownership of the subject matter.The confrontational relationship between the two is reflected in the restrictions on the recalling right,theexercise of the buyer's redemption right,and the distribution of the proceeds of resale.In bankruptcy proceedings,the buyer's right of expectation is not tilted.In the case of the seller's bankruptcy,the option given to the seller's manager is an injury to the buyer's right of expectation.Outside the contractual relationship,there is also a conflict of rights confrontation.The buyer's right to the security of the subject matter or the subject matter's lien will result in a conflict with the rights of the securityee when exercising the recalling right.Because the subject matter is possessed by the buyer,the issue of the subject's creditor's creditor applying for enforcement will occur,and the seller is the owner of the subject matter will raise the issue of whether the seller's creditor can enforce the subject matter.