The Effectiveness Of The Object In The Debtor’s Transfer In A Non-possessive Transfer Of Movable Property And Security

Chattel let and guarantee is a classic problem.Although there are profound theoretical skills and clear logic,but because the legislation has not had a clear attitude,most of the literature is in the assumption of its law,or as a cultural "let and guarantee",and the current relevant legislation and judicial attitude,it is difficult to apply in practice.Article 68(hereinafter referred to as Article 68)on the application of the Interpretation of the Guarantee System of the Civil Code of the People’s Republic of China(hereinafter referred to as the Judicial Interpretation of the Guarantee System)issued by the Supreme Court stipulates: creditors can give priority to compensation.End the prescribed way to the validity of the contract and guarantee discussed by the previous scholars.However,article 68 fails to fully address the problems in this system.In practice,the most condemned thing to letting and guarantee is that in the non-possession transfer chattel,the possession and change as a public way is too hidden and endangers the safety of the transaction.However,since the non-possession transfer type is the most extensive way for the parties to release and guarantee the chattel in practice,since such behavior cannot be prohibited,it should be further explained on the basis of Article 68,with a view to formulating a clear map of interests and provide reference for the resulting disputes.Article 68 only makes clear that the creditor has the priority to compensation,the debtor’s rights are still not clear,and it is uncertain whether the debtor has the right to dispose of the conveyance and collateral.Therefore,in the non-possession transfer chattel transfer and guarantee,when the debtor transfers the possession of the chattel,is there the right to dispose of it? What effect does the affect the conveyance in good faith or malice? That is,the subject of this article: the effect of the debtor transfer non-possession transfer chattel transfer.In the transfer and guarantee of the non-possession transfer chattel,for the validity of the debtor to transfer the subject matter,it is first necessary to analyze whether the debtor has the right to dispose of the subject matter.The source of disposition is obtained by analyzing the provisions of section 68,Supreme Court paraphrases,and security rights similar to section 68 constitute an analysis that the debtor has substantial title to the subject matter.However,whether to exercise the right to punishment requires to analyze whether the debtor’s right to punishment should be restricted.At the same time,it is also necessary to make clear whether their rights under Article 68 are pursuing and effective.Through enumerating various models and analysis,it is seen that the mode of "entitled to punish + is chasing and effective" can avoid the unreasonable brought to creditors,reduce the harm to transaction safety,and is more in line with economic rationality.Secondly,in the case that the creditor’s rights can pursue,if the creditor wants to pursue to the third party,he should publicize his rights,so that the third party can know.For the rights of creditors,it is first necessary to clarify the contents of the publicity according to Article 68.The publicity should be the transfer of ownership,rather than the "concession and guarantee right" proposed by previous scholars.Secondly,due to the particularity of the non-possession transfer way,the publicity way of chattel transfer and guarantee also has its special considerations.In the various ways proposed by comparative scholars,although the possession modification almost does not have the function of publicity,but under the framework of the current law of China,only the possession modification can be used as the way of ordinary chattel publicity.Finally,in the transfer effect,but also need to consider the pursuit of the power to cut off the situation.That is,the third party through good faith and other elements,acquired the movable property.Through the use of the informed discrimination system,the goodwill judgment of the transfer is carefully considered,and by taking constructive knowledge of the special chattel,there is no need to distinguish between the civil and commercial transfer,whether in the general or special circumstances.In general circumstances,no investigation is applicable to the third party.In special circumstances,the investigation may be informed to the assign.Therefore,this article attempts to dispose of the right of the debtor from the debtor is the owner of the subject matter to the right of the creditor to the third party,but the grantee can cut off the pursuit of the creditor,good faith no burden to obtain the ownership to form a logical closed loop.