Research On The Applicable Boundary Of Buyers In The Ordinary Course Of Business

BIOCOB involve two legal relationships and three types of subjects,including the mortgage contract and the sales contract,the mortgagee,the mortgagor(seller),and the buyer.In the case of mortgaged movable property transfer,the interests of the mortgagee and the buyer are opposed.Once the treatment is biased,BIOCOB will either become the buyer’s "gold-free gold medal",resulting in an imbalance in the interests of the mortgagee,or reduced to "a piece of paper",which is difficult to play the role of protecting buyers.The expansion of the application scope of BIOCOB will greatly enhance the possibility of practical application,and this practical dilemma inevitably forces the definition of its application boundary.After the promulgation and implementation of the "Civil Code",interpretation theory will inevitably replace legislative theory and become the mainstream of civil law research.Normal business activities are a special case of the transfer of mortgaged chattels,which are related to security and transaction order,and BIOCOB is an exception clause,which has the legal effect of blocking the pursuit of mortgage rights.In order to avoid abuse,it is necessary to strictly interpret its application requirements through the methods of textual interpretation,system interpretation and purpose interpretation to ensure the coordinated operation of relevant rules and achieve the balance of interests between the mortgagee,the mortgagor and the buyer.First of all,the mortgage movable property as the basic premise should be limited to inventory,and do not limit the subject of the mortgage rights,then reconstruct the standard for identifying the seller’s normal business activities,which means the general business activities are based on the seller’s own or the industry’s usual business behavior while franchising activities are strictly based on the business scope stated in the business license,and expand the transaction form to barter trade and lease.And establish the buyer’s minimum subjective goodwill standard and standardize the interpretation of "payment" "reasonable consideration" and "acquisition".Secondly,under the Codex system,only relying on the meaning of the articles is not enough to correctly define the applicable boundaries of the rules,and it is necessary to coordinate in the Codex system.From a literal point of view,there are conflicts between BIOCOB and the movable property mortgage registration confrontation rules,the mortgage rights recovery validity rules.On the basis of a comprehensive understanding of the legislative purpose,scope of application and system orientation of each rule,the particularity of the former should be determined,and therefore should be applied first.Finally,the protection of mortgage rights and interests is the basic position when the mortgaged property is transferred,and it is also the foothold of the boundary issue of the application of BIOCOB.The protection path of "notice in advance and exercise subrogation right after the event" should be adopted.It is necessary to implement the mortgagor’s assignment notification obligation from the integrity of the logical structure of legal norms,but also to expand the subrogation of mortgage rule purposefully,characterizing as a legal pledge of creditor’s right to protect the interests of the mortgagee.