The Conflict And Resolution Of The Retention Of Title Under Functionalism

Different from the United States based on the functionalism of movable property security system with a single“Security right” concept as the core of the construction of different,the reform of our chattel guaranty system is based on the reservation of different forms of guaranty,such as formalism guaranty and atypical guaranty,emphasis on different forms of guarantee in the publicity,priority and the realization of the unity of the rules.Article 388(1)of the civil code integrates typical and atypical security by the concept of“Other contracts with security function”,thus,the uniformity of different forms of guarantee in the application of the rules can be realized through the guarantee contract.However,due to the legal principle of real right,the security contract,as the consent of the parties,the arrangement of the rights and obligations of the parties only has the effect of debt,and does not have the right to create real right for security.It is the premise of atypical security to apply the rules of real right for security through the concept of“Other contracts with security function”.As for the retention-of-title system,the civil code basically retains the relevant formalism provisions in the original contract law and the judicial interpretation of contracts for sale,at the same time,it carries on the functionalism transformation to a certain extent,in order to realize the functionalism of the ownership retention-of-sale system.In view of the theoretical difficulties in the interpretation of the ownership retention-of-title transaction,it is not conducive to the full use of things.The understanding of the seller’s retention of“Ownership” of the subject matter should not be superfluous in the literal sense,but should be interpreted as security interests from a systematic perspective.The“Procedure for the realization of a security interest by reference” in Article 642(2)should systemically refer to article 196 of the Civil Procedure,and does not include the pricechanging procedure in Article 197,but does not produce the general security real right the liquidation effect directly.Finally,the function of the retention-of-title transaction system overlaps with that of the Purchase Money Security Interests claims in Article 416,they are essentially formalism systems with the same function as those constructed separately in functionalist legislation.