The Defect Analysis And Amendment Plan Of Article 132 Of The Contract Law

Article 132 of the contract law of our country expressly requires,the seller shall have the right of ownership or disposition of the subject matter sold.After the article came out,in the academic circles,many scholars have questioned and reflected on whether it is necessary and reasonable to arouse heated discussion;in practice,in order to standardize the practice,The Supreme People’s Court has issued a "business contract judicial interpretation",the explanation stipulated in article 3 the seller no ownership or disposition when conclude a treaty does not affect the validity of the contract.The judicial interpretation of The Supreme People’s Court has received unanimous praise from both academic and practical circles,however,some scholars have suggested that,whether the article 132 of the contract law is reasonable or not,the formulation of judicial interpretation cannot modify the original law.In this paper,the author first uses the method of the law hermeneutics to explain the article 132 of contract law to clarify the origin of the article and the scope of the subject matter;in the second part,the article 132 of contract law is analyzed through theory and practice;in the third part,through comparative analysis method,the author inspects the practice of civil law countries and regions,common law countries and international law;finally,it is concluded that this regulation should be deleted in the civil code of our country.The reason is that the right of ownership and disposal is the right to transfer the existing rights.The establishment and effective of the sale and purchase contract are different from the transfer of rights,and the ownership or disposal right of the seller shall not affect the validity of the sales contract.The defect of the existing legislation is that it does not clearly distinguish the creditor’s right and the property right,the creditor’s right and the property right,and does not recognize the difference between the property of the creditor’s rights and the property rights of the transfer of rights,and does not realize that the contract is only a set of burden,not the disposition of the transfer of rights.