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Special Movable Property Rights Change Rule Research

Author: LiuLu
Tutor: ZhangChi
School: East China University of Political Science
Course: Civil and Commercial Law
Keywords: Special Movable Property Changes in Property Rights Effectiveness Antagonism
CLC: D923.2
Type: Master's thesis
Year: 2013
Downloads: 2
Quote: 0
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Nowadays, as the ever-changing social-economic development, the importanceof such special movabls as ships, aircrafts and other vehicles has become increasinglyprominent. To adapt to this change and protect transaction security, the legislations ofsome countries and regions regulate the same publicity way and transaction rule asreal propery to these special movable properties. In today’s civil law countries andregions legislation, there are two main patterns in property right change----Intentionsof Credit Rights and Formalism. In the former, changes in property rights are onlysubject to autonomy of will between the parties. This pattern emphasizes respect forthe principle of autonomy of the parties, but due to the lack of publicity in the changeof property rights, it may be harmful to transaction security. To conpensate this defect,some legislations regulate registration antagonism principle.While Formalism can bedivided into two specific patterns,which are Property Rights Formalism and Creditors’Formalism. The main difference between these two patterns is whether to admit theexistence of an independent real right behavior in the change of property right. But inanyway, both of which require certain way of publicity in addition to the autonomy ofwill between the parties in order to make the property right change take effect. Underthis patten, the transaction and publicity of property rights are tied together, thus the transaction security can be effectively protected. Therefore, since the specialmovables apply real estate trading rules, under the two patterns of Intentions of CreditRights and Formalism, special movables’ property rights transaction rule shall follow"the Registration Antagonism" or "the Registration Effectiveness Doctrine”.Generally speaking, China’s legislation mode in property rights change isCreditors’ Formalism, but meanwhile,"Property Law" Article24regulates thatchanges in special movavles property rights can not withstand the third party unlessregistration has been finished. Follow the logical interpretation, due to specialmovables still belong to movable property in nature, the rule of property rights changeof which should be: delivery be the effective element, and registered be the againstelements. This rule determines that the "Property Law" Article24has very limitedeffect in China: First, in the mode of the creditors’ formalism, the third person, if arenot delivered, can not obtain the property rights even if he or she has finishedregistration. According to the legal principle of " The real right takes precedence overthe claim", the third person can not withstand the unrecorded real right person.Second, because the "Bona Fide Acquisition" is designed to protect the public trust ofthe transferee, the model of Registration Antagonism actually given the specialmovables two ways of publicity: possession and registration, both elements can occurwith certain right to effect, but not the full effect of property right. Therefore, as atrading body of special movables, especially the assignee, if he or she want to get thefull, absolute effect of special movables’ property right, he or she must meet both thedelivery and the registration requirements. From this perspective, the changes in aspecial movable’s property right is more complex than that of a general movableproperty or a real property, thus resulting in higher transaction costs and greatertrading risks. This result seems to be absolutely contrary to the original intention topursue convenient and transaction security in special movable property transaction.The root cause of all the problems mentioned above lies in the dual elements ofthe change in property rights:"delivery be the effective element, and registered be theagainst elements", therefore, it must be modified. Take a view on other civil law countries and regions,"the Registration Antagonism" and "the RegistrationEffectiveness Doctrine" are products of the two patterns in property rights change:Intentions and Formalism, and have a logical connection accordingly. Therefore, Ibelieve, since our Property Law has regulated " the Registration Antagonism" as therule in special movables’ rights change, to safeguard the stability of the legislation, itis recommended to interpret autonomy of will as the effectiveness element of thesespecial movables. However, in the long run, we should take formalism in the futureCivil Code. Because Intentions Doctrine is built on a generalized concept of propertyrights, and took the relativity of property rights, no strictly divided into property rightsand claims as its theoretical basis. While Formalism is built on the basis of strictdistinction between property rights and claims, under which property rights areabsolute rights and can against all other people in the world. While the claims arerelative rights, and can not againts others but the parties. So property right changesneed publicity, creditors right changes can occur only in accordance with the mutualunderstanding between the parties. Since our whole property law system is establisedon the basis of strict distinction between property rights and claims, it decides onlyFormalism can better distinguish property rights and claims in nature, better definelegal relationships between different parties, and better able to protect the security oftransactions.

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CLC: > Political, legal > Legal > Chinese law > China and France > Property Rights
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