Study On Title Retention In Bankruptcy Procedures

Articles 34 to 38 of the provisions of the Supreme People's Court on Several Issues concerning the application of the enterprise bankruptcy law of the people's Republic of China(II)(hereinafter referred to as the Judicial Interpretation II of the bankruptcy law)prescribe the treatment of retention of Title sales contracts in bankruptcy proceedings.The basic idea is to recognize the retention of ownership that has not been transferred as the failure of both parties to perform the dual service contract.Both the seller and the buyer can exercise the option right to continue to perform or terminate the contract after entering the bankruptcy proceedings.When the buyer goes bankrupt,if the administrator fails to perform the contractual obligations on time,the seller may retrieve the subject matter of the sales contract in accordance with Article 134 of the contract law.This idea has caused great controversy in the theoretical and practical circles,which needs to be re examined by using the analytical method of legal dogmatism.This paper mainly discusses this problem from three aspects.First of all,it discusses the choice right of the bankruptcy administrator in the sale of ownership reservation.The essence of retention of title is a kind of atypical guarantee,which aims to ensure the buyer to fulfill his contractual obligations.Therefore,the change of real right should also follow the typical way of security establishment,that is,the seller transfers the complete ownership to the buyer first,and then the buyer sets the security ownership for the seller.According to the above real right change mode,in the ownership reservation of ordinary movable property,after the seller's delivery,the ownership of the subject matter has been transferred,and its contractual obligations have also been fulfilled.According to Article 34 of Judicial Interpretation II of the bankruptcy law,after the ownership transfer of the subject matter,the contract does not belong to the bilateral non performance contract,no matter whether it is the seller's return When the buyer enters the bankruptcy procedure,its administrator can not exercise the option.From the essence of the contract to be performed,the reason why the administrator has the right of choice is to maintain the simultaneous performance relationship between the two parties in the contract to be performed on behalf of each other,which embodies the respect of the bankruptcy law for the substantive law rules in ordinary times.As for the retention of ownership of ordinary movable property,its equivalence relationship has been damaged when the seller delivers the subject matter.No matter the seller or the buyer goes bankrupt,the administrator shall not exercise the option.For the retention of ownership of special movable property,the seller still has the obligation to handle the transfer registration after the delivery of the subject matter,which still belongs to the failure of both parties to perform the dual service contract,and the administrator can exercise the option.If the administrator chooses to terminate the contract,when the seller goes bankrupt,the debt that the buyer requests to return the price shall be paid off as the common interest debt;when the buyer goes bankrupt,the seller can exercise the right of recovery.Secondly,it is the exercise of the rights of the owner.In the ordinary substantive law,the withdrawal system of retention of title should be interpreted as a special procedure for the seller to claim for the price of the goods.Its content is almost the same as the compulsory execution,which is a kind of "private execution".After the buyer enters into the bankruptcy procedure,on the one hand,according to the security structure of ownership reservation,the essence of ownership reservation is a kind of real right for security;on the other hand,the withdrawal system of ownership reservation in the substantive law is essentially a kind of realization procedure of real right for security,which is similar to the exercise of the right for exclusion in the bankruptcy law.Therefore,the nature of the rights exercised by the retention of ownership should be defined as the right of exclusion.Scholars in China often question whether the ownership reservation has the right protection qualification in the bankruptcy procedure.The second paragraph of article 641 of the draft civil code adopts the registration confrontation mode for the ownership reservation.Because the bankruptcy administrator and the bankruptcy creditor have the third party nature in the bankruptcy procedure,the unregistered ownership reservation can not confront the bankruptcy administrator or the bankruptcy creditor.At this time,the ownership is reserved The exercise of the right of exclusive right of obligee will be limited.Finally,the third party ownership is retained in the bankruptcy proceedings.The typical transaction mode of the third party ownership reservation exists in the field of automobile,which is composed of automobile manufacturers,automobile dealers and automobile financial companies.At present,there are two theories about the legal structure of the third party's ownership reservation: Legal subrogation and special agreement.There are advantages and disadvantages in each of the two statements.The legal subrogation theory can't include the loan interest,handling fee and other claims of auto financing companies in the scope of guarantee of retention of ownership,while the special agreement theory will make all claims of auto financing companies lack of elements of confrontation,which will make auto dealers unable to exercise the exemption right after entering bankruptcy proceedings.This paper puts forward two solutions to this situation.One is to use the combination of objective preparatory actions in the civil procedure law,with the theory of special agreement as the main litigation claim and the legal subrogation as the preparatory litigation claim;the other is to interpret the contract of sale and purchase of the third party's ownership reservation as the establishment of the insurance right trust,with the automobile finance company as the trustee and the automobile manufacturer as the trustee The object of the trust contract is to retain the ownership,so as to solve the problem of guarantee scope and confrontation of the third party's ownership reservation.