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Study on Unauthorized Disposition

Author: FengWei
Tutor: QinWei
School: Shandong University
Course: Law
Keywords: Unauthorized Disposition Estoppel Disposition Uncertain Effectiveness Subsequent Confirmation Rights The Right to Withdraw
CLC: D923
Type: Master's thesis
Year: 2010
Downloads: 200
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Abstract


Unauthorized Disposition is a highly complex, important and controversial problem in civil law. Prof. Wang Zejian ever called it "genius of the civil law". There are different opinions on the effects and validity of unauthorized disposition. This dissertation proposes the Estoppel Disposition theory to remould the theory of uncertain effectiveness, and establish a scientific unauthorized disposition system. This dissertation is composed of three sections exploring issues relevant to unauthorized disposition.The first section is about the generality theory, discussing concepts of unauthorized disposition and the research method applied in this dissertation. The immense controversy on unauthorized disposition results largely from different understandings on the meaning and extension of unauthorized disposition. This dissertation defines this "disposition" as disposition in the legal meaning, but not the behavior of disposition. Components of the unauthorized disposition include the followings:the doer bears no right to dispose; the doer disposes in his own him name; the action of disposition must be a bilateral legal act; the doer does not have the intention to manage for the benefits of others, and there are no other factors which might affect the validity of such a legal act. The extension include the followings:sell a property without the consent of the owner; impose security interest on other person’s property; transfer other person’s usufructuary right; transfer other person’s intellectual property rights, shares, creditor’s rights; unauthorized (indirect) agency; ultra vires actions of administrator and trustee in bankruptcy, and so on. This dissertation applies the comparative research method, the method of "apply theory to reality", and the economic research method.The second section addresses the theory of effectiveness. This section introduces provisions on unauthorized disposition contained in the civil laws of countries all over the world, analyzes theories prevailing in China, and then draws conclusions on the validity of unauthorized disposition. Provisions on the validity of unauthorized disposition vary depending on the various types of change of property rights. Three doctrines that prevail in China currently, namely the doctrine of invalidation, the doctrine of uncertain effectiveness, and the doctrine of effectiveness, are all have flaws. Although the doctrine of uncertain effectiveness is comparatively preferable, it also suffers important flaws. Hence, this dissertation proposes the theory of Estoppel Disposition to reform the doctrine of uncertain effectiveness. The so-called Estoppel Disposition means that if the doer disposes another person’s property without authorization, while the opposite party has the reason to believe that the doer possesses the right of disposition, or has the reason to believe that the doer can obtain the right of disposition, such disposition is effective and valid. With proper transformation, the doctrine of uncertain effectiveness can overcome the flaws with the. doctrine of effectiveness, and at the same time achieve the function of the doctrine of effectiveness, that is, to protect the transaction order. Therefore, it is the one which best fits in with China’s now actual situations.The third section addresses the legal consequences of invalid and valid contracts concerning unauthorized disposition. This section introduces the legal consequences of the unauthorized disposition contrack which subsequently confirmed by the right holder and Withdrawed by the thrid person in good faith.The contract could be valid whenever one of the following three conditions is satisfied:subsequently confirmed by the right holder, or the doer obtains the confirmation of the right holder, or Estoppel Disposition. Otherwise, the contract would be invalid. This section focuses on the confirmation by right holders and withdraw by the thrid person in good faith, studying the concept, nature, exercise and loss of the right of subsequent confirmation and the right to withdraw, the legal relations after confirmation, and the legal relations when the contract is deemed as invalid as well.

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