On The System Of Title Retention

Title Retention is a kind of institution that the owner of property shifts the possession to the other part, holding ownership until the other part pay all cost or finish specifically condition. Comparing to traditional security property, the special law construction balances the rights of parties more effectively.However, according to present law in our country, there is the rule in Contract Law in which only admits the existence of Title Retention, the interrelated content of Title Retention doesn't have detailed rule. And then causes the confusion in the judicial practice. So conducts the deep research, and build systematic system of Title Retention is advantageous in making up the insufficient of civil theory and practice in our country.This article after profiting from the legislation and the theory in other countries and areas, introduce the concept of Title Retention, the characteristic, and the historical evolution. Then analysis the nature of Title Retention, the buyer's expectation right and the recovery right of seller. And puts forward several proposals to expect to help our country future legislation.The article contains preface and body. The body has four parts.The first part of this paper starts with the concept and characteristics of Title Retention, and then introduce the development of Title Retention in German Law, French Law, American Law, British Law, Japan Law and the Law in Taiwan.The second part is about the dispute of the legal nature of Title Retention. Firstly, this chapter introduces domestic and international scholar's different views on this question. Then gives analysis on that and propose author's own opinion: the nature should contain two parts, as the shift of ownership concerned, the Title Retention is shifting ownership with condition; as the debt guarantee concerned, Title Retention is secure ownership.The third part researches some important theory questions. Firstly this part analyze the object scope of Title Retention, the author holds that the Title Retention is not only suitable for movable property, but also suitable for real estate. Secondly this part introduction and analyze the mostly viewpoints of buyer's expectation right, and the author thinks that the buyer's expectation right is a special right which is similar to the real right. Thirdly this part researches the recovery right of seller, the seller enjoys mainly taking-back right, namely the right of fetching the subject matter under the situation that buyer doesn't perform obligations agreed. As for the legal effect of the fetching right, this part introduce three kinds of theories, and then draws the view of this paper. At last this part discusses the balance of seller, buyer and the third one.The forth part gives some suggestions about consummating the system of Title Retention in our country. According to present law of our country, there is only one provision in Contract Law ,and this provision is very simple. So the author gives several suggestions to expects to contribute little force for our country. This part also discusses the relationship among Title Retention, pledge on movables and hypothec right.