Research On The Realization Of Guarantee Function Of Ownership Retention System

Before the enactment of the Civil Code of the People’s Republic of China(hereinafter referred to as the Civil Code),the way to realize the title retention guarantee function was for the seller to exercise the right to take back.The Civil Code restructured the title retention system systematically,which changed the way to realize the title retention guarantee function.Under the background of legislative amendment of the ownership retention system,the realization of its guarantee function is not completely clear.It is necessary to combine the relevant theoretical viewpoints of the ownership retention system to carry out in-depth thinking and research on the realization of the guarantee function of the ownership retention system and how these ways realize the guarantee function of the ownership retention system.Taking the implementation of the Civil Code as the time limit and comparing the legal provisions on the ownership retention system before and after the implementation of the Civil Code,the Civil Code constructs a new ownership retention system.Comparing the legislation of chattel guarantee system of various countries(regions),it can be summarized into two legislative modes: one is the "formalism" legislative mode,in which a certain transaction mode is included in chattel guarantee system only if it conforms to the characteristics of chattel guarantee in form;the other is the "functionalism" legislative mode,no matter what the form of transaction mode is.As long as those who play the function of guarantee debt in civil activities are brought into the regulation scope of chattel guarantee transaction,our country adopts the legislative method of a combination of "formalism" and "functionalism".The real right of guarantee is a definite real right arising from the ownership,so the ownership retention system with ownership as the guarantee does not have the external form of the real right of guarantee,and it is not stipulated in the real right of the Civil Code.However,from the function,the ownership retention guarantees the realization of the seller’s rights.The Civil Code has designed a series of systems that transform the function of ownership retention into the real right of guarantee.It provides the premise for the ownership retention system to apply the rules of security real right.Such a legislative model makes the ownership retention system have the dual attributes of ownership and security right.In form,the seller retains the ownership,but in essence it is the security right,which also causes the change in the realization of the guarantee function of ownership retention.Based on the property attribute of ownership retention,the seller can realize its guarantee function by exercising the right of recovery.Based on the property attribute of ownership retention,the Civil Code adds a reference to the implementation procedure of the applicable real right of security to realize the guarantee function of ownership retention.Therefore,there are two ways to realize the guarantee function of ownership retention:one is through the seller exercising the right to take back,but by referring to the implementation procedure of the applicable security real right.For the realization of the guarantee functions above,the main research content of this thesis is to clarify the respective legal basis of the two methods,how to use the two methods to realize the guarantee function,what legal effects will be produced by using the two methods,and relevant issues that should be paid attention to when using the two methods.On the basis of fully discussing the realization of the above two guarantee functions,Explore the advantages and disadvantages of these two methods in the process of realizing the guarantee function,in order to facilitate the parties to realize their rights more efficiently and conveniently,and better play the guarantee function of ownership retention.This thesis puts forward constructive suggestions for the realization of the guarantee function of ownership retention.