所有权保留之取回权法律保护研究

发布时间：2019-06-15 14:30

【摘要】：本文主要研究了所有权保留中出卖人取回权制度。所有权保留制度因为程序简便,为人们在买卖交易过程中作为非典型担保制度广为应用。然而我国法律对所有权保留买卖制度规定得较为单薄。本文通过对国内外有关所有权保留的立法和学说认真梳理和分析,论述了出卖人取回权的行使条件、程序以及公示制度等问题,并提出了相关制度的构建与完善建议。以提高交易各方信用,建立诚信社会,维护我国经济的健康、稳定、可持续发展。首先,取回权的行使条件。《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《买卖合同司法解释》)规定,出卖人行使取回权不仅要满足买受人未按约定支付价款,或者未按约定完成特定条件,或者将标的物出卖、出质或者作出其他不当处分,还应当满足“造成损害”这一条件,这为出卖人行使取回权增加了困难。笔者认为应当废除这一条件,同时应引入延长所有权保留制度,简化取回权的行使条件,保障出卖人取回权的行使。其次,取回权行使程序。《买卖合同司法解释》第35条至第37条仅仅规定了向法院寻求救济这一种方法。本文主张,在取回权的行使程序方面,可以借鉴美国和我国台湾地区的相关规定,即出卖人既可以自行取回标的物,也可以向法院请求取回标的物,并对此进行了详细论证。最后,公示制度。标的物由买受人占有,但由于法律上缺乏公示制度,第三人难以知晓标的物的所有权的归属,常常导致当事人之间发生利益冲突,也使得出卖人在行使取回权时,无法对抗善意的第三人,限制了其权利的行使。本文主张,我国立法上应当构建公示制度,并对登记公示制度的价值、法律效力等相关问题进行了详细论述。本文建议,我国应采取区分公示主义的立法模式,统一公证机构为登记机关,以维护各方当事人的合法权益。
[Abstract]:This paper mainly studies the seller's right of recall in the retention of ownership. The retention of title system is widely used as an atypical guarantee system in the process of buying and selling because of its simple procedure. However, the system of retention of ownership is relatively weak in the law of our country. By carefully combing and analyzing the legislation and theory of retention of ownership at home and abroad, this paper discusses the conditions, procedures and publicity system of the seller's right of recall, and puts forward some suggestions for the construction and improvement of the relevant system. In order to improve the credit of all parties to the transaction, establish a good faith society, maintain the health, stability and sustainable development of our economy. First of all, the conditions for the exercise of the right of withdrawal. The interpretation of the Supreme people's Court on the applicable legal issues in cases involving disputes in the contract of Sale and purchase (hereinafter referred to as the Judicial interpretation of the contract of Sale and purchase) stipulates that the seller must exercise the right of withdrawal not only to meet the buyer's failure to pay the price as agreed, or to complete the specific conditions as agreed, or to sell, produce or impose other improper sanctions on the subject matter. The condition of "causing damage" should also be met, which makes it more difficult for sellers to exercise the right of recovery. The author thinks that we should abolish this condition, at the same time, we should introduce the system of extending the retention of ownership, simplify the conditions for the exercise of the right of recovery, and ensure the exercise of the right of recovery of the seller. Secondly, the procedure for the exercise of the right of withdrawal. Articles 35 to 37 of the Judicial interpretation of the contract of Sale and purchase only provide for the method of seeking relief from the court. This paper argues that in the exercise procedure of the right of recall, we can draw lessons from the relevant provisions of the United States and Taiwan, that is, the seller can not only retrieve the subject matter on his own, but also apply to the court for the recovery of the subject matter, and has carried on the detailed demonstration to this. Finally, the publicity system. The subject matter is occupied by the buyer, but because of the lack of publicity system in law, it is difficult for the third party to know the ownership of the subject matter, which often leads to conflicts of interest between the parties, and makes the seller unable to confront the bona fide third party when exercising the right of recovery, which limits the exercise of his rights. This paper argues that the publicity system should be constructed in the legislation of our country, and discusses in detail the value and legal effect of the registration publicity system. This paper suggests that our country should adopt the legislative mode of distinguishing publicity and unify the notarization institution as the registration authority in order to safeguard the legitimate rights and interests of all parties.
【学位授予单位】：首都经济贸易大学
【学位级别】：硕士
【学位授予年份】：2017
【分类号】：D923.6

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