Right Disposition Study

Wang Ze-jian regards the unauthorized disposition as the "spirit is science on Civil of Law" to show accurately the importance of its role in Civil Law. After the article 51 in the General Principle of Civil Law of the PRC had regulated on it, the jurists bring forth their own opinions on this article without any final conclusion. In order to make unauthorized disposition's characters clear, this article takes the following ways of thinking: (1) Under different legislative modes of right's alteration, the unauthorized disposition has the different effect. This article takes effort to analyze what on earth the problems are about its concept under the principle of the credit's formalism in our "Contract Law". (2) From the views of the basic theories and basic systems of the Civil Law, the structure and effect of the unauthorized disposition of property are arranged more appropriately and reasonably. Surrounding these problems, the article puts forward its own answers.There are four parts in the article:Part Ⅰ is the analysis on the definition of unauthorized disposition. In China, it means that the person without the right to disposition of property makes contract with the counterpart in his own name, and performs according to the contract. The constitutive elements should be: (1) the doer disposes the property in his own name; (2) the doer has no right to disposition; (3) the obligee's rights are violated by actuality. According to this kind of meaning, this article divides the unauthorized disposition into false unauthorized disposition and real disposition.Part Ⅱ researches the unauthorized disposition from five aspects with autonomy of will, legal act, ownership and possession, claim in contract and balance of interests. A contract of sale can contain intention that may result in the change of real right. The obligee needn't to ask for the invalidity to support his rights. His rights can be protected by the ownership. Different country's civillaw measures to the benefits of every party concerned and concludes the different effect of the unauthorized disposition as the result of the need of fair and justice.Part Ⅲ analyses the relations between unauthorized disposition and bona fides acquisition, illegal profit, security for defects of rights, voluntary service in our country's legal system. This part explains all sorts of legal problems caused by unauthorized disposition and applies different legal system to solve these problems.Part Ⅳ focuses on the validity of unauthorized disposition in our Contract Law. Invalidity theory believes the object of contract is beyond the right of unauthorized person, so the contract is invalid, definition of validity theory thinks the contract should be invalid unless it is agreed later by obligee. Validity theory suggests that this contract is valid for the purpose of protecting the transaction and the in interests of counterpart. If the unauthorized person cannot perform the contract, the counterpart can stand for liabilities for breach of the contract. After analyzing the shortages of all the theories, this article compares these theories and offers its own suggestions.