Rethink And Perfection Of Title Retention On Chattels

In the contemporary society the financing demand is extremely strong,thus the enrichment of guarantee methods and the innovation of the guarantee law become a common task for all countries.The chattels compared with the real properties have wide varieties,and they are easy to obtain and circulate.For these characteristics,an increasing number of traders focus on the chattel secured transaction.In some sense,the security on chattels is the core of modern security regime.There are two different approaches to innovate chattel secured transaction,namely,repairing pattern and unifying pattern.No matter which pattern will we finally adopt,untypical security must be a focus.Especially,the guarantee laws of the civil law countries generally have the problems that the kinds of real rights for security can't meet the needs of practice.Compared with the other untypical securities,the title retention has the unique characteristic that the parties of financing neither need resort to any other persons nor need resort to any other objects.They can get guarantee just on the subject matter.With the characteristic,the title retention acquires high utilization rates.Consequently,this paper combines chattel and the title retention as the object of study,and hope to contribute slightly to the innovation of the chattel security system.The starting point of the study is the definition and the legal character of the title retention.Although there are abundant studies in the two fields,the theorists can't reach an agreement up to now,especially on the problem of the legal character.This paper will clarify different kinds of theories,and compare three main positions on this basis that the title retention indeed uses the ownership to secure the creditor's rights,or can be interpreted as a kind of real right for security,or the title retention is a kind of security interests.It is also very important that if the different legal characters will cause different system structures of the title retention.Through this comparison a more profound understanding which is the basis of perfecting the title retention can be formed.This paper will make reference with the advanced legislations on the aspect of publication.In particular,the publication of the title retention on chattels needs combine domestic and extraterritorial legislative experience.Besides introduction and conclusion,there are three chapters in this paper.The first chapter is titled as "The definition of the title retention".In this part different academic perspectives about the definition of the title retention are discussed,and on this basis we can develop our own opinion.The definition of the title retention focuses on two aspects,namely,the object and the type of transaction.Grasping the two aspects,we can understand the situations where the title retentions widely used.Certainly,the definition of the title retention can't be separated from the understanding of the legal character.This thesis suggests that the title retention can be used in movable property transactions as well as in real property transactions.However,taking the innovation of chattel secured transaction into consideration,this thesis focuses on the chattel,and limit our discussion to the trade transaction.The second chapter is titled as "The legal character of the title retention".Firstly,this part combs and abstract three approaches refer to the legal character of the title retention.Through the comparison,we can discover traditional theories focus on the ownership,and discuss the operating effect of the title retention on this basis.While comparing from four aspects,namely,from the standpoint of seller,from the standpoint of buyer,from the standpoint of third party and application and effect of the title retention in bankruptcy procedure,we could understand the key point of this institution is not the ownership.What is truly remarkable is that as a kind of security interest,how the title retention could guarantee the creditors' priority rights for debts.The third part is titled as "The perfection of the title retention on chattels".This part combs the regulation of the title retention in current Chinese civil law.Then the different legislation samples about the publication of the title retentionon chattels are compared,and the UNCITRAL Draft Model Law on Secured Transactions is a helpful reference when we try to perfect the title retention on chattels in our country.This thesis suggests that the publication mode of the title retention on chattels should be the counter publication.Exceptionally,for consumer goods,they can acquire the external validity automatically.In addition,as the floating charge has been established in our country,we should recognize the super priority of the title retention.