Discussiond On Law Application Of Registration Antagonism In Change Of Real Right Of Movables

Movables are classified into general movables and special movables. The delivery effectiveness is applied to the change of real right of the general movables while the registration antagonism to the special movables. It’s stipulated that in Article24of Real Right Law of the People’s Republic of China:"The creation, alteration, alienation or termination of the real right of any vessel, aircraft or motor vehicle and so on may not challenge any bona fide third party if it is not registered." According to the Article, the real right of any vessel, aircraft or motor vehicle and so on may take effect upon the delivery (or once the agreement is reached in the opinion of some scholars) and the registration shall only challenge the third party. The Civil Law of the People’s Republic of China inherits the Pandekten System with dualistic real right and creditor’s right. The System strictly distinguishes the real right and creditor’s right, i.e. the real right is the absolute right of exclusive effect. With regard to the exclusiveness based on the real right, we may question the application of registration antagonism in change of real right of special movables as such:On the condition that the registration fails to be completed, whether the right that is achieved by the buyer but shall not challenge the third party with good faith is a real right? In case such right is not the real right, then the logical contradiction will occur concerning the opinion that the change of real right has taken effect upon the delivery. Thus this shows that the registration antagonism contradicts with the civil law system with the dualistic real right and creditor’s right. As it is, what problems will be caused once the registration antagonism is applied to the change of real right of the special movables? What measures are taken by the legislative body for these problems? What are the results? And how to improve the change patterns of real right of special movables once the civil code is formulated in our country?In this paper, the author conducts a comprehensive analysis on the current application situations of registration antagonism in change of real right of movables. Firstly, the reasons why the registration antagonism is applied to change of real right of movables are expounded in terms of transactional efficiency and identification of tortuous liability and problems appearing in the application of registration antagonism are drawn forth by taking the exclusiveness of real right as the entry point. Secondly, problems appearing in the application of registration antagonism are analyzed in detail both theoretically and juridical practically. Theoretically speaking, the registration antagonism contradicts with the public trust principle, and is unable to explain whether the unregistered proprietary right is the real right and unable to effectively protect the interest of third party; in the juridical practice, two problems will appear in the application of registration antagonism:(1) Whether the change of undelivered but registered real right takes effect is unable to be identified; and (2) in multiple transaction, the registration antagonism is unable to balance the interest in a good way once the delivery is completed by one party and the registration is completed by the other party. In the analysis of theoretical contradiction in the application of registration antagonism, the origin of registration antagonism system will be involved and it’s pointed out that the registration antagonism is an inevitable outcome in the development of change patterns of real right in creditor’s right concensualism, so as to find out that the primary reason why registration antagonism is applied to the change of real right of movables in our country lies in the mutual contradiction between registration antagonism and real right and creditor’s right dualistic civil system. Finally, suggestions for the improvement based on the problems which appear are presented by the author.