A Study Of The Seller's Right Of Reclamation In A Retention-of-title Transaction

Articles 641-643 of the “Civil Code“ stipulate the ownership retention system.While inheriting the provisions of the original “Contract Law“ and related judicial interpretations,it has also been improved.It is generally believed that the “Civil Code“ adopts a legislative orientation that integrates the concept of formal and substantive guarantees.Although it is still regulated in the form of ownership,it recognizes and emphasizes the guarantee function of ownership retention.The new regulations dilute the definition of the nature of ownership retention,and focus more on the practical perspective of the realization of the guarantee function to expand the system structure.This is the innovation of the “Civil Code“,but the integration of different guarantee concepts in the same code also creates applicable conflicts and systems Inconsistency.To clarify the right of retrieval,it is still necessary to accurately define the nature of the retention of ownership from the interpretation,and resolve the application conflicts caused by the two security concepts.Under the strict distinction theory of the traditional concept of property rights and creditor's rights in my country's traditional civil law,although the retention of ownership has the characteristics of both property rights and creditor's rights,it should still be classified as one of them.Because the structure of property rights is closer to the essence of the system,it should be retained The ownership of the property is recognized as a creditorized property right.In theory,the nature of ownership retention includes various theories such as the transfer of ownership with cessation conditions,the transfer of partial ownership,the transfer of differentiated ownership,and the transfer of divided ownership.They are analyzed from the perspective of ownership and security rights,but there are many theories.For unexplainable issues,the academic community has not formed a complete consensus.Various theories have been confined to the nature of retention of ownership for a long time,resulting in the inability to clarify the right of retrieval in the realization process,and severely weaken the function of the system in judicial practice.Each doctrine derives its own right of withdrawal theories,and the coexistence of each other will inevitably lead to the coexistence of the theory of right of withdrawal,which mainly includes the theory of the effect of the right of cancellation,the theory of the termination of the contract with a legal time limit,and the theory of reimbursement.Under the legislative orientation of the “Civil Code“ pursuing the function of retention of ownership,the author believes that it can be analyzed from the perspective of microstructure,and the system structure should be focused on the balance of rights of the parties.Due to the similarity in structure,the structure principles of the deposit system and the uneasy defense system can be referred to to adjust the rights and obligations of the parties who retain the ownership.Based on the development of the micro-analysis perspective of the retention of ownership,the analysis of the nature of the seller's right of withdrawal shows that the theory of contract termination with a statutory time limit is better than the theory of reimbursement and the validity of the right of cancellation.This theory can well resolve the conflict between the formal and substantive views of guarantee,has strong operability,can play the guarantee function of the system,and protect transactions.It can also be deduced from the microstructure of the right of retrieval that the bona fide acquisition restriction on the right of retrieval is justified and necessary,and “the buyer has paid 75% and does not support the exercise of the right of retrieval“ is unreasonable and should be deleted.In addition to the clearly stipulated “retrieved by negotiation“ and “retrieved by reference to the applicable guarantee realization procedure“,the realization method of the right of retrieval can be deduced from the general provisions of the contract.The seller can also directly sue to retrieve the subject matter in accordance with the contract of sale and sell it.In the process of auctioning the subject matter by the court,the party retrieves the subject matter and disposes of it on its own.This not only reflects the institutional advantage of the ownership retention system that has stronger security effect than ordinary security real rights,but also does not lead to the seller's over-protection.On the contrary,it can prevent abuse.Lawsuit,saving transaction costs.The right of retrieval and other security rights should be subject to the general rule of publicity priority,so that the retention of ownership is included in the guarantee system of the Civil Code.However,the guarantee function arrangements based on different systems are different.Under the same conditions,The realization level of the right of repossession is superior to the priority right of repayment of ordinary security real rights,and second to the priority right of repayment of the mortgage of debts.