Systematic Application Of Acquisition Mortgage Right And Retention-of-title Sales

The introduction of the concept of substantive security is a major innovation in the field of chattel security in my country as a traditional civil law country.Acquisition mortgage right added in Article 416 of the Civil Code reflects the absorption and reference of the functionalist guarantee system,and the acquisition creditor who meets the requirements of "dealing with the mortgage registration within ten days after the delivery of movable property" can obtain the legal status of super priority in repayment,thus providing a legal basis for breaking the previously established floating mortgage,helping the debtor to broaden financing channels,and at the same time make the best use of everything.The predecessor of the acquisition mortgagee is the owner of the purchase,which is also one of the sources of legitimacy for its super-priority in repayment status.retention-of-title sales and Acquisition mortgage right are both used as the means to realize the secured price of the creditor.The seller uses the retained "ownership" to guarantee the buyer to pay the price or perform other obligations.The two parties to the transaction agree to transfer only the subject matter through the contract.To the buyer for possession and use,the ownership of the subject matter still belongs to the seller.However,the retention-of-title sales,which is an atypical security,has not been systematically restructured into a typical security interest and is still stipulated in the contract.Article 388 "Other Contracts with Guarantee Function" breaks through the shackles of the legal principle of property rights to some extent,and provides an interpretation basis for the systematic application of atypical guarantees and typical guarantees in legal norms.At the same time,the relevant provisions of the Civil Code and the Judicial Interpretation of the Guarantee System also confirm that the contract with the function of guarantee can mutatis mutandis apply the rules for the establishment,publicity,realization,and competition for the order of "guarantee interest".However,although the Civil Code affirms the guarantee function of retention of title,it does not deny the legal status of the seller as the full owner.Therefore,the retention of title presents a mixed structure of two security concepts,functionalism and formalism,and will face the problem of coordination between security ownership and "real ownership" in legal interpretation and legal application.The introduction of the two security concepts into the code is bound to cause great changes to chinese’s movable Property security system,and the underlying problems are very complicated.Whether the future legislation will adopt the concept of functionalism "security interest" for unified treatment,or maintain the status quo of the mixed structure and use the judicial system.Interpretation or separate law to make special provisions,pending further test in the field of movable property security practice.As a typical structure of Acquisition mortgage right,retention-of-title sales,which are located in the position of non-typical guarantee system,are highly similar in function.Because of the coherence of the internal system of law,systems with the same function should be treated equally or similarly in the application of law.According to the current provisions of the Civil Code and the Judicial Interpretation of the Guarantee System,systematic methods have been adopted for the sale and purchase of title retention and Acquisition mortgage right in some aspects,such as the registration and publicity system for retention of title,and the The degree of application of the priority order,the realization rules of the guaranteed price,etc.However,the "Civil Code" has not broken through the influence of the formalistic guarantee concept in the legal provisions for the sale and purchase of retention of title,and the seller’s rights are reserved in the statutory law,which is still called "ownership" in the terminology.how to make the retention-of-title seller and the Acquisition mortgage right achieve the same or similar legal effects,it is necessary to use the path of hermeneutics and legal doctrine to demonstrate and reason.Therefore,this paper selects the two for comparative analysis.In the face of the provisions that have been treated differently in the statutory law,how to build a systematic application of the two in terms of legal hermeneutics and legal dogmatics to solve the problem of functional retention of ownership.Conflicts in legal interpretation and legal application maintain the coherence of the internal legal system.