The Introduction Of Autonomy In Foreign Ownership Of Movable Property Is Too Much.

< p > the real right relationship in the modern society has changed greatly compared with the law of the place where the object is located. Many new property rights are not the solution of the law of the place where the object is located. Blindly adhering to the law applicable to the place where the object is located may not be conducive to the realization of the substantive justice of the party.

In view of this, the law applicable law has introduced a lot of newer and more flexible link elements while adopting the law of place of things.

It includes not only conditional adoption of the law of the place where the object is located, such as seventeenth "trusts", twenty-fourth "marital property relations", thirty-seventh "movable property rights", but also some new connection points of the application of real right law, such as thirty-eighth "movable property rights in pportation" (pport destinations), thirty-ninth "securities" (rights realms or most closely related) and fortieth "pledge of rights" (the place where the right of pledge is established).

What is more "innovative" is that the thirty-seventh and thirty-eighth principles of the law introduce the principle of autonomy of the parties in the mode of the alteration of the real right of the foreign property, which greatly breaks through the general principles of the application of the law of real right in the place where the object is located.

We know that under the strong opposition of the civil law academia in our country, the property law of our country excludes the liberalism of real right and establishes the doctrine of real right.

[7] the application of law applicable to < a href= "http://www.91se91.com/news/index_c.asp" > foreign-related property rights < /a > should also be consistent with the relevant provisions of our current civil law so as to ensure the consistency of legislation in the same civil legal system.

However, the law of application of law has allowed the rebirth of property liberalism, which runs counter to the basic principles of China's current property law, and is far from the prudent practice of other countries in this regard.

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< p > first, the legality, absoluteness, worldliness and publicity of real right require that the application of law in real right can only be controlled by the law of place where the object is located, but not allowed by the parties.

In the relationship of real right, other parties are not specific except for the obligee of real right.

The real right is the right to the world, and it can fight against all people, including third people.

Therefore, the "parties" can not be specified in the thirty-seventh law that "the parties can agree to choose the law applicable to the real right of movable property".

This is different from creditor's rights. Creditor's rights are human rights and the rights and obligations between specific parties. Therefore, they can agree to choose the appropriate law to adjust their relationship, and creditor's rights can only restrict the parties involved in creditor's rights, and can not antagonize the third party.

At the same time, the real right must be publicized, which is the basic principle of the property law.

[9] only the applicable law of real right is clear, and the real right may be publicized.

If the parties can arbitrarily choose the right a href= "http://www.91se91.com/news/index_c.asp" > the applicable law < /a >, the contents of the real right will be floating in the state, which can not be known to all. The instability of the real right will affect the interests of the third party in particular.

Therefore, in order to ensure the safety of pactions, we must ensure the clarity of the real right so that the third party can know the content of the real right so that he will not be damaged by the unforeseeable legal control of the subject matter.

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The provisions of < p > second and thirty-seventh are not compatible with the provisions of the current law on the alteration of the real right of movables in our country.

According to the thirty-seventh provision, the legal relationship regulated by the law applicable to the agreement between the parties is the alteration of the real right of the movable property.

According to different legislative models of real right change, there may be different conditions for the change of movable property right under the law of various countries.

In France and Japan, the mode of real right alteration in Germany and Switzerland, the mode of real right alteration in Germany and Switzerland, and the mode of real right alteration in the form of creditor's rights in Austria and Korea, etc.

[11] when the parties choose the law, they choose a way of movable property right alteration.

Such a provision is equivalent to giving the parties a right. They can choose the time to change the real right of the movable property by choosing the law.

Under the legislative mode of contract law in China, the pfer or reservation of chattel ownership can be agreed by the parties. However, in accordance with the provisions of the property law of China, the agreement of the parties on the establishment and pfer of the movable property rights is excluded.

This stipulation is no longer arbitrary mode of legislation. It shows that legislators are interested in controlling the establishment and pfer of chattels. The thirty-seventh provision may enable parties to evade this mandatory rule through legal choice.

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"P > Third, < a href=" http://www.91se91.com/news/index_c.asp "> property rights < /a > there are few foreign legislation cases in which the party autonomy is introduced, and there are many restrictions. The judicial status quo is not optimistic.

It is Switzerland that first introduced the principle of autonomy of the parties in the legislation of private international law.

In 1987, when the federal law on private international law (2010) was established in Switzerland, while establishing the law of the place where the object was located, the 104th provision also stated: "for the acquisition and loss of real property, the parties may choose to apply the law of the sending country, the law of the country of destination, or the legal act that controls the acquisition and loss of the real right.

This choice of law shall not be used against third persons. "

[12] shows that the autonomy of the parties stipulated in the Swiss private international law in terms of real property rights is conditional and limited party autonomy, which is limited to the real right relationship between the two sides, and can not be more against the third party.

However, the thirty-seventh and thirty-eighth provisions of the law applicable law of China do not have any restrictions on the law of choice of the parties, especially the failure to consider the possible impact on the interests of the third party.

Judging from the current judicial situation, the 104th provisions of Swiss private international law have been tested for more than 20 years, and their functions are quite different from those of legislators. In recent years, they have been severely criticized.

[13] therefore, the principle of autonomy of will introduced by thirty-seventh and thirty-eighth articles without any restrictions will bring great trouble to the future judicial practice. In the case of the fact that the legislation is faxing, it is suggested that the Supreme People's court limit this interpretation through judicial interpretation.

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