Right Disposition Theory

Provision 51 in Contract Act, is the major provision dealing with the disposition without authority, the unusual but very important issue, in current justice arena in China. Because of the disagreement of relevance concepts and theories, the different subjective values judgement of law among the scholars, however, there are various views resulted in the application of this provision. This paper is concerned with the complexity of the disposition without authority based on provision 51, including distinguishing the different concepts and systems, analysing the merits of the various values judgement of law, offering the judgement of the author and the reason from which the judgements could be derived. This paper consists of five parts besides the introduction: 1. On the general theory of interpretation of law; 2. Analysing the concepts of disposition without authority; 3. The comparative study of the disposition without authority; 4. The study of the contract of the disposition without authority in our Country; 5. Disposition without authority and unjustified benefit.the first part is concerned with the theory of interpretation of law relevance to the interpretation teaching of this paper. The interpretation in this paper belongs to the interpretation of broad sense, including not only the defining the relevant concepts, the choice of the interpretation results derived from the application of the Act, but also analyzing the values judgement of law in which the legislative teaching of provision 51 is embodied. The interpretation of law should have its certain aim, and we should choice a comparative reasonable and operating one among the various interpretations by the means of weighing the values of them.The second part is concerned with the nature, composition and scope of the disposition without authority. Because the juristicact of real right is not adopted in civil law in China, the disposition without authority relating to the provision 51 is just pointed to the creditor's right contract. The disposition of the personal property is on the premise that the dispositor has no ownership of the property. So it determines the tortious nature of the disposition without authority, and the action consists of three conditions: 1. it must be founded on the principle of publication and trust; 2. the dispositor carries out this action by the name of himself; 3. the dispositor signs the contract attempted to transfer the property with the third person. Based on the conditions above, the author analyses the scope of disposition without authority in pratice, and make a contrast between the disposition without authority and some other system of Civil Law, etc. the agency without authority and unjustified benefit.In the third part, the author studies the dealing with the disposition without authority in the different transferring standards of property. Through the coutrast, the author clarifies the following views: 1. the validity of contract depends on the values judgement of law of the legislative in a country rather than the merely logic results of the regal system; 2. it could reserve the room for the legislative to choice the comparative suitable interpretation result accoding with the legislative standard of transferring propert in our country; 3. the reality that the emphasis of the modern Civil Law has been transferred from the "secure of static", represented by the ideal of "sacred ownership", to the "secure of movable", represented by the "protecting of the transaction secure", is a very important factor for us when it is concerned with the validity of the contract.In the fourth part, firstly, the author clarifies the controversy about the validity of the contract resulted from the provision 51, demonstrates the shortcomings of the different interpretation results, and reveals convincing imperfection of theprovision 51. Futhermore, the author approves of the views of validity contract on the ground of the following reasons: emboding the ideal of "protecting transaction secure", maintaining the order of transaction in the economic society and in some degree, controlling the taking place of the disposition without authority. Secondly, the author discusses the relation between the disposition without authority and the good faith acquisition, andsuggestes that there is no substantive disagreement between the so called viewpoints of "original acquisition" and "transferred acquisition". In practice, both of them all need the existing of a validity contract, the controversy is merely on "theoretic significance". Of course, this part is the emphasis of this paper.The fifth part is comcerned with the relation between the disposition without authority and unjustified benefit. The author demonstrates the historic develepment of the unjustified benefit, and generally introducts the equilibrium and remedy to the injured person resulted by the disposition without authority.