Study On The Exercise Of Right Of Withdrawal In Chinese Ownership Reservation System

In the legislative reform of chattel guarantee system,the Civil Code carries on the innovation,absorbs and draws on the legislative model of functionalism from outside the territory,and forms the legislative paradigm of formalism and functionalism.According to the provisions of the Civil Code,in the sale of ownership retention,the title retained by the seller is the real right with the guarantee function,and the right of retrieval is the core element of the ownership retention system and the key to safeguard the seller’s legitimate rights and interests.Properly solving the problems in the process of the seller exercising the right to take back is helpful to balance the legitimate rights and interests of both buyers and sellers,and promote the application of ownership retention in practice.The norms of the right of recovery in our ownership retention system are concentrated in the current Civil Code,the Interpretation of Sales Contract and the Judicial Interpretation of Bankruptcy Law(II),but the other provisions are relatively simple.Then,through the retrieval of cases,the current situation of the right of retrieval in judicial practice under the ownership retention system is analyzed,and it is found that the disputes in the right of retrieval cases account for a high proportion,judges pay attention to the protection of the interests of the bona fide third party,whether the exercise of the right of retrieval leads to the termination of the contract there are different judgments in the same case and the execution of the right of retrieval cases is difficult.Combining with legal norms present situation and judicial practice,it is not difficult to find that there are some deficiencies in the exercise of right of takeback in our ownership reservation system,mainly the conditions of exercise of right of takeback are too strict,the scope of exercise is not clear,the procedure of exercise is not standard,the right allocation of the parties after the seller takes back the subject matter is controversial and so on.In order to properly solve the problem of the exercise of the right to take back in the ownership retention system,we dig deep into the legal basis of the seller’s exercise of the right to take back,and make it clear that ownership retention is essentially a kind of agreement with guarantee function,which is an atypical definition of security real right.The right to take back is an important means to realize the right to guarantee,and the purpose of the seller’s exercise of the right to take back is to seek compensation for the property.Based on the relativity of the contract,this paper introduces the right against the seller’s right to take back,namely the buyer’s expectation right,and the way of exercising the right to take back "disposition liquidation" under our legislative example,so as to provide legal basis for protecting the seller’s right and balancing the interest relationship of all parties.Based on the above theories and methods,by referring to foreign legislative examples and relevant studies of Chinese scholars,and according to our judicial practice,it is suggested to improve the exercise rules of the seller’s right to take back in the current ownership retention sale from the following four aspects.First,expand the interpretation of "damage to the seller" requirements,limit the interpretation of "the buyer has paid more than 75% of the total price" in order to relax the exercise of the right to take back;Secondly,by introducing the system of extended retention of ownership,it is clear that the add-ons and redisposition income of the buyer belong to the exercise scope of the right to take back.Thirdly,by learning from the American self-relief construction mode,which is based on the premise of "not violating public order",providing simple public relief procedure for the seller to choose,so as to standardize the exercise procedure of the right to take back.Fourthly,standardize the exercise of the right of redemption and the right of resale,so as to improve the right allocation mechanism after the seller exercises the right of resale.