买卖合同中所有权保留制度若干问题探究
发布时间：2018-07-18 20:36
【摘要】：所有权保留制度在我国是一种比较新颖的担保方式,它在保护交易安全、均衡交易当事人间的利益、促进经济发展方面具有重大作用。但面对复杂而庞大的所有权保留制度体系,《中华人民共和国合同法》第134条的原则性规定和去年出台的《最高人民法院关于审理买卖合同纠纷案件适用法律问题的解释》(以下简称“最高院的司法解释”)对所有权保留问题进行的专门司法解释显得很单薄。在实际应用过程中,所有权保留制度滞后的法律规定,无法很好的调整人们的交易行为,也无法体现该制度的巨大优势。本文选取买卖合同中的所有权保留制度为研究对象,拟采用文献归纳法、比较分析法、经济分析法等研究方法,对该制度中的一些法律问题进行深层次探讨,以期为今后所有权保留制度的立法提供一些参考。 本文第二章从所有权保留制度的含义出发,对所有权保留制度存在的合理性进行分析。第三章介绍了国内外有关所有权保留的立法现状。通过比较,针对在理论界一直争议不断的所有权保留的法律性质问题,本文认为应从所有权移转和债的担保两个角度对其进行分析,它应是一种担保性所有权。第四章主要解析了实践中常出现争议的关于所有权保留制度的几个具体问题。分析了所有权保留的动产客体范围以及最高院司法解释排除所有权保留对不动产适用的原因。本章还比较了非登记主义、登记主义和区分登记主义几种公示模式,通过分析其中的优点和弊端,认为我国应采用书面成立一登记对抗主义的公示方法。本章分别从出卖人的取回权和买受人的期待两方面探讨了所有权保留的对内效力,还从出卖人将标的物所有权让与第三人、买受人将标的物所有权让与第三人、第三人侵害标的物时,买卖双方和第三人的权利义务三方面分析了所有权保留的对外效力。第五章是对完善我国所有权保留制度的立法期望。本文认为首先要统一指导思想,在此基础上,针对我国所有权保留制度的相关立法和司法解释的缺陷,提出完善我国所有权保留制度的立法建议。
[Abstract]:Retention of title system is a novel way of guarantee in China, which plays an important role in protecting transaction security, balancing the interests of the parties to the transaction and promoting economic development. However, in the face of the complex and huge system of retention of ownership system, the principle of Article 134 of the contract Law of the people's Republic of China and the legal issues applicable to the Supreme people's Court concerning the trial of disputes over sale and purchase contracts issued last year The special judicial explanation of title retention is very weak. In the process of practical application, the legal provisions of the retention of title system lag behind, can not adjust the transaction behavior of people well, nor can it reflect the huge advantages of the system. This paper selects the ownership retention system in the contract of sale and purchase as the research object, and uses the methods of literature induction, comparative analysis, economic analysis and so on, to probe into some legal problems in this system. In order to provide some reference for the future legislation of retention of title system. The second chapter analyzes the rationality of ownership retention system from the meaning of ownership retention system. The third chapter introduces the domestic and foreign legislation status of retention of title. By comparison, in view of the legal nature of the retention of title, which has been controversial in the theoretical circle, this paper holds that it should be analyzed from the two angles of transfer of ownership and guarantee of debt, which should be a kind of secured ownership. The fourth chapter mainly analyzes several specific problems concerning retention of title system, which are often disputed in practice. This paper analyzes the object scope of title retention and the reasons why the Supreme Court's judicial interpretation excludes the ownership retention from being applicable to immovable property. This chapter also compares several publicity modes of non-registrationism, registerism and registerism. By analyzing their advantages and disadvantages, the author holds that our country should adopt the method of establishing a register antagonism in writing. This chapter discusses the internal effect of the retention of title from the seller's right to take back and the buyer's expectation, and the seller transfers the title of the subject matter to the third party, and the buyer transfers the title of the subject matter to the third party. When the third party infringes on the subject matter, the rights and obligations of the buyer and seller and the third party analyze the external effect of the retention of title. The fifth chapter is the legislative expectation of perfecting the system of retention of ownership in China. This article thinks that first of all, we should unify the guiding ideology, on this basis, in view of the defects of the relevant legislation and judicial interpretation of the retention of ownership system in our country, put forward the legislative suggestions to perfect the ownership retention system of our country.
【学位授予单位】：南昌大学
【学位级别】：硕士
【学位授予年份】：2013
【分类号】：D923.6
本文编号：2132698
[Abstract]:Retention of title system is a novel way of guarantee in China, which plays an important role in protecting transaction security, balancing the interests of the parties to the transaction and promoting economic development. However, in the face of the complex and huge system of retention of ownership system, the principle of Article 134 of the contract Law of the people's Republic of China and the legal issues applicable to the Supreme people's Court concerning the trial of disputes over sale and purchase contracts issued last year The special judicial explanation of title retention is very weak. In the process of practical application, the legal provisions of the retention of title system lag behind, can not adjust the transaction behavior of people well, nor can it reflect the huge advantages of the system. This paper selects the ownership retention system in the contract of sale and purchase as the research object, and uses the methods of literature induction, comparative analysis, economic analysis and so on, to probe into some legal problems in this system. In order to provide some reference for the future legislation of retention of title system. The second chapter analyzes the rationality of ownership retention system from the meaning of ownership retention system. The third chapter introduces the domestic and foreign legislation status of retention of title. By comparison, in view of the legal nature of the retention of title, which has been controversial in the theoretical circle, this paper holds that it should be analyzed from the two angles of transfer of ownership and guarantee of debt, which should be a kind of secured ownership. The fourth chapter mainly analyzes several specific problems concerning retention of title system, which are often disputed in practice. This paper analyzes the object scope of title retention and the reasons why the Supreme Court's judicial interpretation excludes the ownership retention from being applicable to immovable property. This chapter also compares several publicity modes of non-registrationism, registerism and registerism. By analyzing their advantages and disadvantages, the author holds that our country should adopt the method of establishing a register antagonism in writing. This chapter discusses the internal effect of the retention of title from the seller's right to take back and the buyer's expectation, and the seller transfers the title of the subject matter to the third party, and the buyer transfers the title of the subject matter to the third party. When the third party infringes on the subject matter, the rights and obligations of the buyer and seller and the third party analyze the external effect of the retention of title. The fifth chapter is the legislative expectation of perfecting the system of retention of ownership in China. This article thinks that first of all, we should unify the guiding ideology, on this basis, in view of the defects of the relevant legislation and judicial interpretation of the retention of ownership system in our country, put forward the legislative suggestions to perfect the ownership retention system of our country.
【学位授予单位】：南昌大学
【学位级别】：硕士
【学位授予年份】：2013
【分类号】：D923.6
【引证文献】
相关硕士学位论文 前1条
1 宋思语;所有权保留制度研究[D];广东财经大学;2015年
，本文编号：2132698
本文链接：https://www.wllwen.com/falvlunwen/hetongqiyue/2132698.html
