On The Realization Of Retention Of Title In Bankruptcy Proceedings

Title Retention,due to its characteristic"neither turns to others for help nor depends on itself " and simple procedures,has been playing an important role in economic life,so its security interest should be recognized.As a form of non-typical security,it has flourished in business practice,however,there are still many problems in area of bankruptcy.China's Supreme People's Court(SPC)has published a reference document to help judges handle complicated civil and commercial disputes and a another reference document to help judges handle problems in area of bankruptcy.Meanwhile,the codification of the Civil Code is on the way.For these reasons,we should pay more attention to the title retention.According to the current law,the seller has the right to get back in bankruptcy proceedings in the title of retention.But,with the clarification of the Civil Code(Draft)on the registration of title retention and the emergence of stronger title retention in real life practice,we need find out that whether title retention could be the right base of exemption right.The first chapter of this article is divided into two parts.The first part summarizes and reviews the current legislative status of title retention in China.The second part starts with a bankruptcy liquidation case in bankruptcy practice,then raises the related issues of title retention in the bankruptcy process.The second chapter of this article analyzes the legal nature of title retention especially in academic area,then summarizes the nature of non-typical security and sorts out the types of title retention.Secondly,analyze the structure of the right in title retention.As a typical representative of the concept of rights protection balance,the structure of title retention contains the core rights of the buyer and seller,which are the seller's right of recall and the buyer's right of foreclosure and expectation.It is discussed from the perspective of cases in practice.The third chapter of this article discusses the exercise of the seller's right to get back in bankruptcy.Under current law,sellers have the right to recall in bankruptcy proceedings,but should be limited to simple types of retention of title.Firstly,analyze whether the bankruptcy administrator has the option to retain the title retention contract and whether the bankruptcy administrator's right to dissolve should be restricted.By analyzing and comparing the Contract Law,the Judicial Interpretation of the Sale and Purchase Contract and the current bankruptcy legislation,it concludes that,the seller in the simple type of retention of title has the right of "recall of ownership retention" and the recall right of bankruptcy,and then analyze the exercise path,procedure and related remedy.The fourth chapter of this paper analyzes whether the seller has exemption right in Bankruptcy.This chapter is divided into two parts.The first part first analyzes the difference between the right to recall in bankruptcy proceedings and the exemption right,and then discusses whether retention of title is an atypical security and whether the seller can have the exemption right in the bankruptcy process.As both the retention of title and the transfer guarantee are guarantee methods based on the transfer of ownership,title finance is similar as title retention.Therefore,by comparing the exclusion of the transfer guarantee in the bankruptcy proceedings,it is concluded that the title retention can be the right base of exemption right in bankruptcy,especially the retention of ownership of complex types and stronger guarantees or security.The second part examines the issue of priority compensation when competing with ownership retention and exclusive rights,then concludes that the solution to this problem is to publicize the registration through title retention,and then offering advice on how to establish a unified registration system for movable property security rights and recommendations on refinement of title retention issues.