The Research On The Variation Of Special Movable Property Rights

Article 24 of Property Law makes a general provision on the variation of special movable property rights, namely the so-called "Registration Confrontation". However, due to the abstraction, ambiguity of the provision, coupled with the complexity of "Registration Confrontation", there exits quite controversies on the requirements of validity and the application of "Registration Confrontation" in theory and in practice. Scholars abstract a rule mode from the theories and articles that the variation of special movable property rights employs "taking effect through delivery and resisting through registration".That is the starting point that this article would demonstrate. Through sorting out both theoretical research and existing norms, we believe that the variation of special movable property rights takes delivery as the requirement of validity in principle, takes a consensus as an exception, and the latter has priority over the former. At the same time, the creation of pledge and the transfer of property ownership do not actually follow "Registration Confrontation". Thus, the applicable scope of the rule mode of "taking effect through delivery and resisting through registration" is very limited. According to Article 188 of Property Law, special movable property right to mortgage "shall come into effect as of the effectiveness of the mortgage contract; without the registration, the right to mortgage shall not challenge any bone fide third party". However, some other provisions (such as Article 190, Article 199) do not consider the third party’s subjective state. As a result, there exists a dilemma between Article 188 and other provisions.From the perspective of publication of real right, "Registration" enjoys different properties and functions between "Registration Confrontation" and "Registration Validity". The former is a noun, focusing on presumption and credibility, which is the method of publication of the possession of real right; the latter is a verb, focusing on formation, which is the method of publication of the variation of real right. Further we need to analyze kinds of theory constructions of the registration confrontation doctrine. The existing theoretical studies have widely referred to the theories, precedents of Japan. However, an important difference is quite often ignored: Japanese Civil Law does not recognize good-faith Acquirement relating to immovable properties and special movable properties; Article 106 of Property Law stipulates good-faith Acquirement to be applicable to movable and immovable properties. Although there are many drawbacks in public reliance theory on Japanese law, it is the just passable option for explaining the legislation purpose and the civil law system of China. Similar cases are numerous.In addition to Introduction and Conclusion, this article is divided into four parts. Chapter I focuses on the basic issues of variation of special movable property rights, such as clearing the concept and features of a special movable property, carding legislative models of special movable property rights on Chinese law. On the basis of commenting on kinds of theories, Chapter II proposes that the variation of special movable property rights should take delivery as the requirement of validity in principle, take a consensus as an exception, and the latter should have priority over the former. Chapter III analyzes kinds of theory constructions of the registration confrontation doctrine, and then thoroughly reviews the existing studies. Chapter IV researches on the disputes arising from variation of special movable property rights, and puts forward some suggestions to prevent risks and handle disputes.