On The Transference Of The Claim For Restitution In Lieu Of Delivery

The chattel delivery system determined in Article 227 of the Chinese Civil Code follows Article 26 of the Property Law,and on this basis modifies the basic constitutive elements of "legal possession".In lieu of delivery,also known as the surrender of the right to return,the statutory law begins with Article 931 of the German Civil Code and is later transmitted to the mainland through Article 761 of the Civil Law of Taiwan to determine the system.In addition to the introduction,the whole content of this paper is discussed in three chapters: "The problem of indicating the delivery system,instead of the certificate of delivery,instead of the multiple conveyances of delivery".The second chapter describes the directive delivery theory.The first is to indicate localization deviations in delivery development.The delivery of instructions with Japan’s acquisition of instructions as the underlying logic has been out of the field of real right change and has produced a legal effect completely opposite to the logic of Article 227.The former is obtained along with the instruction of Japanese civil law,while article 227 of Chinese civil law provides for the concession of the right of restitution from German civil code.The second is the conflict between instruction delivery and Article 227.The content of instruction delivery highlights the role of instruction and the third party,which makes the seller’s behavior of instructing the third party become particularly important in the change of real right.In practical judgments,there are many judgments of "no effect of change of real right occurs without notice",which compete with the rules of assignment of creditor’s rights.Article 227 of the Civil Code does not trace the act of "directing" or "delivering".Finally,the author lists the judgments made by the Higher People’s Court and the Supreme People’s Court on the delivery of instructions and Article 227 of the Civil Code through case search.It can be found that the delivery of instructions has mixed the rules of creditor’s right performance and real right change in practice,and even homogenized the standard of the transfer of creditor’s right in some cases,that is,the effect of no notice and no real right change.In the judgment,the judge uses instruction delivery in the context of contract disputes as "the creditor instructs the debtor to perform to a third party" and "the debtor instructs the third party to perform to the creditor".This use mode is completely based on the textual interpretation of instruction delivery itself and makes a popular understanding,which is divorced from the effect of Article 227.The third chapter is the proof in lieu of delivery.Civil Code Section 227 does not direct delivery but rather supersedes delivery.Summary Civil Code Section 227 derives from its indirect possession attributes.In lieu of delivery is not delivery,but "other circumstances prescribed by law" under the transfer of real rights system,as distinct from delivery--meaning delivery based on a direct transfer of possession(actual delivery).Substitute delivery has the same legal effect as actual delivery--the real right changes directly.Based on this,it proves the property of the claim of real right instead of the claim of restitution in the delivery,and excludes the application space of the claim of creditor’s right.Second,it demonstrates the nature of the transfer agreement,which is different from the contract of creditor’s rights,but the real right act.Its establishment also needs to meet the basic constituent elements,but the non-restricted contract is standardized.The sale contract cannot represent the real right transfer agreement,but it can be implicit in the terms,so as to avoid the trap of the meaning of creditor’s rights.By demonstrating the constitutive elements of substituting delivery,it affirms the necessity of disposal right and transfer agreement,and negates the legal quality of third party possession.Finally,it discusses the legal effect of substitute delivery,which is helpful to judge the subject matter risk-taking.Chapter four discusses the application of bona fide acquisition in lieu of delivery.For one thing two sale,the Interpretation of the Supreme People’s Court on Applicable Legal Issues in hearing Disputes over sales Contract has clearly stipulated that delivery takes precedence over payment and the establishment of the contract,which does not consider the subjective state of the buyer,but is based on the stability of market transaction and the freedom of sale.However,if intervention replaces delivery,Multiple deliveries occur in the first link.From one thing two sell transfer to one thing two pay conflict.The author lists four models to discuss the ownership problem respectively,among which the solution is nested bona fide acquisition system.But there is a fallacy that the legislation of our country for one thing and two sale obviously excludes the subjective state of the sale,so it is more rigorous and limited in using the rules to solve the problem.