On The Right Disposition

Contract Law, promulgated in 1999, classifies unauthorized disposal of property (UDP) through contract as contract whose validity is to be ascertained. Such classification gets a strong echo in the academic area. Many scholars put forward their objections or criticism. Mr. Liming Wang, Professor at the Law Department of People's University of China, even hold an seminar to discuss such classification. Also, many scholars published their articles, expressing their own opinions regarding the validity of UDP.On the basis of many relevant articles, I am of the opinion that the classification in the Contract Law is not in consistence with many theories and systems of the civil law, and also that such classification is in fact disadvantages to protect transaction safety and third party's interests. On the contrary, if we treat UDP as valid, we can assure transaction safety and third party's interests by means of default, parties variation, and rights flaw, etc. Besides, unification of legal systems shall be observed. In this essay, I discuss the concepts of different property variation model and use a number of words about the affect of property variation on the UDP. I also put forward my doubt to the Article 51 of Contract Law and disclose in brief the defects of the Article 51. Four theories are listed in this essay, such as Validity Theory, Invalidity Theory, Validity to be Ascertained Theory and the Theory that validity is uncertain but not able to be against third party. Theoretic basis and objector's reasons are also discussed. In order to demonstrate that Validity to be Ascertained Theory is incorrect, I further discuss the contradiction between the Theory and relevant theories and systems, including creditor's rights theory and property variation theory, the theory of privity of contract, the theory of guarantee responsibility of right flaw, the theory of buyer in good faith and option transaction system.Then, I pose my opinion that UDP contract shall be ascertained as valid. For the purpose to find theoretic evidences, I also do my further analyze on the relationship between the reason of property variation and its result, unable delivery theory, the provisons in Contract Law relating to the validity of contract, the balance of the interests of the parties to a contract, third party's protection, and safety of transaction. In order to resolve the issuesresulting from my opinion, I further make discussions about the effect of the owner's ratification, parties variation, default. In conclusion, I am of the opinion that unless there is other flaws, UDP contract shall be ascertained as valid, and that in the event of ratification, parties variation takes place if the owner's real purpose is to subject to UDP contract, and that in case of validity of UDP contract, unauthorized disposer shall be liable to his fail in delivery of the property, and finally that legal relationship between real owner and unauthorized disposer is able to be resolved by means of breach of contract, unjust enrichment, and relevant provisons about tort.