Research Of The Buyer Rule Of The Normal Business In Civil Code

The buyer rule of the normal business means that,in the event of the existence of a mortgage on movable property,a buyer who has paid a price and accept the property in the ordinary business may acquire ownership of the mortgaged property without encumbrance and without being affected by the retroactive effect of the mortgage.Article 404 of the Civil Code extends the field of the rule to mortgages on movable property in general,and the Judicial Interpretation of the Security System further includes retention-of-title sales and financial lease transactions in the scope of application of the rule.While expanding the scope of application of the rules,the existing legal norms do not make clearer provisions on the elements of application of the rules.The ambiguity of the legal provisions may create two problems in the application.On the one hand,the court in the application,interpretation of the rule.can not make the value of the rule to maximize;on the other hand,the application of the rules of the boundary of arbitrary expansion,the situation of abuse of the rules.Based on the institutional basis and value of the rule,this paper applies the method of hermeneutics and balance of interests to explain the legal effects of the rule,sort out the relationship between the rule and other related rules,and put forward corresponding suggestions to improve the rule in view of its shortcomings.What is the institutional basis for the buyer rule of the normal business?There are two major theoretical views of the rule,one is the floating charge system for movable assets and the other is the special Bona Fide Acquisition.Among them,there arc different views on whether the floating charge system is closer to the "British" or"American" style.In this paper,we believe that the historical development of the rule,which first appeared in the legal arena,is to serve the chattel security system.After the English equity law formally established the system of floating charge on movable property,the prototype of this rule also appeared,and later became the most important feature of the system.Therefore,taking the floating charge system of movable property as the system foundation of the rule is in line with the development of the rule.After comparing and analyzing the characteristics of the two models of "British "and "American",we can see that our movable mortgage system is more inclined to the "American floating mortgage The "American floating mortgage" model.From the difference between the rule and the Bona Fide Acquisition,it is easy to see that the Bona Fide Acquisition cannot be used as the basis of the rule.Regarding the institutional value of the rule of arm’s-length purchaser,the amendment to the rule of arm’s-length purchaser in the Civil Code has been opposed by not a few voices in the academic circle,although most of them are in favor of it.Based on the legislative intent of this provision,this part argues that the changes made by Article 404 of the Civil Code are justified and systematic from the perspective of systematic interpretation.It responds to the opponents’ arguments by positively evaluating the institutional value of the expanded scope of application of the rule.After understanding the institutional basis and value of the rule,the next step is to explain the elements and legal effects of the "arm’s-length buyer rule".According to the general theory,there are four requirements for the application of the "normal business buyer rule".Based on the Civil Code and the Judicial Interpretation of the Security System,this article explains the above four elements of the "normal business buyer rule" by taking into account the different views and referring to the relevant provisions of the UCC and DCFR.At the same time,the legal effect of the rule is expressed in terms of the blocking effect of the application of the rule on the mortgage right and the security right holders against whom the arm’s length buyer can act,in order to make the scope of application of the rule clearer,to better balance the interests of the guarantor,the buyer and the security right holder,and to prevent the abuse of the rule from leading to the security right holder being in danger.Since the rule is applicable to the entire movable security right system,it is inevitable that it will compete with other rules in the process of application,such as how to deal with the competition between Article 404,Article 406,Article 403 and Article 416 of the Civil Code,therefore,it is necessary to sort out the relationship between the relevant rules to ensure the uniformity within the movable security system.ensure the unity and coordination within the movable security regime.There are still some shortcomings in the application of the normal business buyer rule in China.such as the lack of criteria for judging normal business activities,the vague regulations on the subjective status of the buyer of "normal business activities",and the overly broad subject of the establishment of floating mortgage.The application of the rules Improving the deficiencies in the application of the rules is conducive to making the rules better serve various commercial subjects and maximize the value of the rules.