Analysis of disputes between motor vehicle ownership retention and chattel mortgage; Special chattel

On the dispute between motor vehicle ownership reservation and special chattel mortgage

——————— Based on the case analysis of an automobile sales company.

Yang yuguo

I. Cases to be analyzed

Plaintiff: Henan A Automobile Sales & Service Company.

Defendant yang

Defendant: Xu.

Cause of action: motor vehicle ownership dispute

Henan A Automobile Sales & Service Company (hereinafter referred to as Company A) and Yang signed the Installment Automobile Sales & Service Agreement on March 20 14, stipulating that the ownership of the vehicle will be owned by Company A until Yang pays off the bank loan and the toll paid by Company A after the loan. In the same month, Yang and Zhengzhou High-tech Zone Sub-branch of Bank of China signed the Credit Card Special Installment Contract of Bank of China Co., Ltd., and agreed to repay the loan in 36 installments, one for one month; Company A and Zhengzhou High-tech Zone Sub-branch of Bank of China signed the Credit Card Special Installment Guarantee Contract of Bank of China Co., Ltd., stipulating that Company A would provide joint liability guarantee for Yang's loan. The main contents of the above agreement:

1. Company A sold the above BMW to Yang at a price of 760,000 yuan, and Yang paid a down payment of 228,000 yuan, and the remaining 532,000 yuan was loaned to Zhengzhou High-tech Zone Sub-branch of Bank of China. Yang promised to deposit the loan principal and interest payable and the post-loan management fee into his loan principal and interest account before June 5438+5, 2005, for the loan institution and Company A to collect. ..

2. Company A provides joint liability guarantee for Yang's loan, and Yang pays the post-loan management fee to the plaintiff on schedule.

3. Before Yang pays off all the principal and interest of the loan institution and other agreed funds that should be paid by Yang to Company A, the ownership of the vehicle shall be owned by Company A. Company A agrees that Yang is registered as the owner of the vehicle in the vehicle management office, and the ownership of the vehicle will not change.

4. If Yang fails to repay the loan principal and interest of the lending institution and the plaintiff's post-loan management fee within the time limit, resulting in the guarantee liability of Company A, the plaintiff, as the owner of the vehicle, has the right to take back the vehicle.

Since 2065438+March 2004, Yang has failed to repay the loan to Zhengzhou High-tech Zone Sub-branch of Bank of China for eight periods, and also paid the post-loan management fee to Company A, which caused Company A to assume the guarantee responsibility of 13 1240 yuan to the bank, and the bank has withdrawn the above money from the deposit account of Company A, so Company A made it on 20 14.

Yang's vehicle exercised the right of recall and was recalled to Company A. ..

Due to a private lending dispute with Yang, Xu, as a creditor of Yang, filed a lawsuit with the court, demanding that Yang repay his loan and applying to the court for the preservation of the BMW. Subsequently, the court issued a notice of assistance in execution to Company A, requesting Company A to return the BMW.

Second, the problem and analysis

Question 1: Analysis of the seller's recall right under the validity of the ownership retention agreement

The purpose of the ownership reservation clause is to protect the seller's interests and prevent the buyer from disposing of the subject matter without authorization before paying the full price, which makes it difficult for the seller to realize its creditor's rights. In order to give full play to the guarantee function of ownership and ensure the realization of the seller's rights, the law usually recognizes the seller's right of recall.

(1) Conditions for realizing the right of recall

According to Article 35 (20 128) of the judicial interpretation of the sales contract, the seller may claim to take back the subject matter under any of the following circumstances. 1. Failure to pay the price as agreed; 2, did not complete the specific conditions in accordance with the agreement; 3. Sell, pledge or otherwise improperly dispose of the subject matter. In any of the above circumstances, the seller has the right to take back the subject matter. If the value of the retrieved subject matter is obviously reduced, the seller may require the buyer to compensate for the loss. It can be seen that the law does not stipulate the conditions for the seller to exercise the right of recall, but leaves it to the autonomy of the parties. The law has relaxed the provisions on how the parties agree to pay the price and fulfill certain conditions and obligations, and what kind of improper punishment the buyer makes to the subject matter.

(B) the right to recall restrictions

According to Article 36 of the Judicial Interpretation of Sales Contract (Law Interpretation 20 128), if the buyer pays more than 75% of the total price of the subject matter and the seller claims to acquire the subject matter, the people's court will not support it. It can be seen that this article clearly stipulates this restrictive condition, that is, if the total price of the subject matter is paid more than 75%, the seller's right to take back is restricted. In addition, in view of the scope of application of Article 36, under the ownership reservation, the confrontation between the buyer who pays more than 75% of the price and the buyer who fails to perform the agreed specific obligations is the judicial interpretation of the sales contract. 20 128) made a restrictive interpretation of article 134 of the contract law, and this article will not be further analyzed.

(3) Loss of recall right

According to the second paragraph of Article 36 of the Judicial Interpretation of Sales Contracts (Law Interpretation 20 128), the third party is based on the provisions of Article 106 of the Property Law.

If the seller obtains the ownership or other real rights of the subject matter in good faith and requests to retrieve the subject matter, the people's court will not support it. It can be seen that after the legal consequences of bona fide acquisition, the right of recall under the ownership reservation has been eliminated, and the seller can only claim the liability for breach of contract from the buyer and compensate for the losses.

In addition, after the seller exercises the recall right, the author thinks that the recall right is established for the buyer's possession of the subject matter, which only leads to the buyer's loss of possession of the subject matter and the contract is not terminated. The contract will be terminated only if the buyer does not exercise the right of redemption. Accordingly, there is no direct causal relationship between the recall right under the ownership reservation and the termination of the contract.

Question 2: The right conflict between motor vehicle ownership reservation and mortgage.

The conflict between ownership reservation and mortgage is as follows: 1, the conflict between the seller's ownership reservation and the buyer's mortgage on the motor vehicle with ownership reservation; 2. The seller sets the mortgage first and then retains the ownership and sells it to the buyer; 3. The seller sets the mortgage first, then retains the ownership and sells it to the buyer, and then the buyer mortgages the motor vehicle that retains the ownership. In view of the current conflict of rights, there is no explicit provision in our laws. In practice, there is still no conclusion on the substantive issue of "who should bear the adverse consequences of recovery failure".

This paper only expounds the right conflict between the seller's retention of ownership and the buyer's mortgage on the motor vehicle with retention of ownership under the setting situation.

In judicial practice, there is a view that according to Article 134 of the Contract Law, the law allows the parties to agree on the retention of ownership in the contract. It is precisely because the retention of ownership is agreed by both parties to the contract, which has no publicity effect and is an abnormal trading method. For the third party outside the contract, it has no way to know the status of ownership reservation. Therefore, in order to ensure the security of the transaction, if the parties only agree on the retention of ownership in the contract, the agreement has no effect against the third party.

The author of this paper thinks:

1. If the mortgage established by the buyer on the motor vehicle that retains ownership has been registered, based on the principle of property right priority and bona fide acquisition, the mortgage of the registered bona fide third party can be protected, that is, the agreement to retain ownership shall not be against the bona fide third party. If a third party knows that there is a reservation of ownership or does not meet the conditions for bona fide acquisition, it shall protect the rights of the seller.

2. If the mortgage set by the buyer on the motor vehicle with retained ownership is not registered, according to the provisions of Article 24 and Article 188 of the Property Law, when the mortgage contract comes into effect, the mortgage is established and not registered.

Never face a real third party. Therefore, in this case, the buyer obviously violated the contract with the seller, and the seller was in good faith as the observant party. In this case, it is obvious that the seller agreed that the establishment time of ownership retention comes first, and the mortgage right enjoyed by the third party (motor vehicle mortgagee) comes later. To sum up, the rights of sellers should be protected.

Question 3: Analysis of the Effectiveness of Motor Vehicle Mortgage Registration and Countering the Third Party in Good Faith In this case, Yang's vehicle was mortgaged to Zhengzhou High-tech Zone Branch of Bank of China and registered, while the vehicle mortgaged to Company A was not registered. The effectiveness of the two mortgages and the third person, namely, Yang's creditor Xu, takes precedence, which is understood in combination with the Property Law and Judicial Interpretation of the Property Law 1 (Law 20 165).

According to Article 24 of the Property Law, the establishment, alteration, transfer and extinction of the property rights of ships, aircraft and motor vehicles shall not be opposed to bona fide third parties without registration. Article 188 If the property specified in Items 4 and 6 of Paragraph 1 of Article 180 of this Law or the ship or aircraft under construction specified in Item 5 is mortgaged, the mortgage right shall be established when the mortgage contract comes into effect; Without registration, you may not be able to fight well-intentioned third parties. Article 6 of Judicial Interpretation No.1 of Property Law (Interpretation No.20165) When the transferor transfers the ownership of the ship, aircraft and motor vehicle, the transferee has paid the consideration and obtained possession. Although it is not registered, the creditor of the transferor claims that it is a "bona fide third party" as mentioned in Article 24 of the Property Law, and does not support it, except as otherwise provided by law. It can be seen that Article 24 of the Property Law establishes the registration confrontation system for the change of property right of special movable property. Article 188 of the Property Law establishes the registration confrontation system of special chattel mortgage. Article 6 of Judicial Interpretation of Property Law (I) makes special provisions on bona fide third parties. Although it is more general, it still stipulates the big principles.

According to the above legal provisions and the case of this paper, the conclusion is drawn.

1, motor vehicle mortgage (registered) has the effect of confrontation and priority.

2. Motor vehicle mortgage (unregistered). According to the principle of priority of real right, the third party outside the case (Yang's creditor) is the creditor. Obviously, although the motor vehicle mortgage is not registered, it has priority.

3. Scope of bona fide third party

The scope of the third party directly affects whether the mortgagee can realize his mortgage when the mortgage is not registered, and has a great influence on the security and order of the transaction. The meaning of a bona fide third party can be abstractly interpreted as "a person who doesn't know and shouldn't know the fact that the real right of a specific movable property has changed but hasn't registered it, and enjoys the legitimate real right interest in the subject matter" (Xinmin Business Theory). Others explain it as "something I don't know and shouldn't know."

The rights of the relative person in the real right relationship have changed ",(Hu, editor-in-chief: Interpretation of the Real Right Law of People's Republic of China (PRC), Law Press, March 2007, p. 69. )

Accordingly, as long as the existence and exercise of the rights of the third party will conflict with the rights of the chattel mortgagee, it belongs to the third party in legislation, that is, the third party here refers to the bona fide third party whose exercise of all rights conflicts with the chattel mortgage. Specifically, the third person includes:

1. Transferee of chattel mortgage

When a bona fide transferee is not bound by Article 19 1 of the Property Law, it can be divided into two situations. First, when the ownership of movable property has not been transferred, it means that the mortgagee may not claim that the sales contract is valid and may not restrict the mortgagor from transferring the mortgaged property; Second, when the transferee has obtained the ownership of movable property, the meaning of non-confrontation should be interpreted as that the mortgagee of movable property shall not exercise the recourse effect of the mortgage of movable property. That is to say, even if the mortgagor transfers the mortgaged movable property without the consent of the mortgagee during the mortgage period, the acquirer of the movable property collateral does not need to undertake the obligation of paying off on behalf of the mortgagor in accordance with Article 191 of the Property Law. 2. Mortgagee of movable property established after.

Here can be divided into two situations: First, the registered chattel mortgage has been completed. Paragraph 2 of Article 199 of China's Property Law stipulates that "registered mortgage takes precedence over unregistered mortgage". Therefore, for registered chattel mortgagees, regardless of their subjective goodwill or not, their mortgage takes precedence over unregistered chattel mortgage. Therefore, the registered mortgagee of movable property can be compensated in priority through Article 199 of the Property Law, without having to protect his rights through Article 188 of the Property Law. Second, the chattel mortgage established later was not registered. Paragraph 3 of Article 199 of China's Property Law stipulates that "if the mortgage is not registered, it shall be paid in proportion to the creditor's rights". Therefore, when the first chattel mortgage is not registered, the first chattel mortgage shall not be against the later chattel mortgage, regardless of whether the later chattel mortgagee is in good faith or bad faith. It can be seen that according to the relevant provisions of Article 199 of China's Property Law, regardless of the subjectivity of the chattel mortgage established later, its chattel mortgage can obtain the effect of confronting the prior chattel mortgage, and the specific effectiveness of confrontation varies depending on whether the chattel mortgage established later is registered or not.

3. After the establishment of chattel pledge,

That is to say, for the chattel pledgee who is established later and has completed the transfer of possession, if his subjective intention is good, his pledgee enjoys the priority over the chattel mortgage, and if his subjective intention is malicious, he can confront the chattel pledgee and enjoy the priority over the chattel pledgee.

4. Creditors who have a trading relationship with the mortgagor.

Creditors who have a trading relationship with the mortgagor can be divided into specific creditors with mortgaged movable property as the specific subject matter and ordinary creditors without mortgaged movable property as the subject matter. For ordinary creditors who have a trading relationship with the mortgagor and do not take the mortgaged movable property as the subject matter, they are only "potential third parties". Only when bona fide ordinary creditors apply for enforcement or participate in distribution in the bankruptcy of creditors, unregistered chattel mortgage may not claim the priority of compensation. However, for a specific creditor who takes the collateral as the subject matter, such as the borrower of the collateral, the chattel mortgagee may not oppose the borrower, that is, the realization of the chattel mortgage does not affect the lease relationship between the parties.

So as to protect that security of the transaction. For ordinary creditors who have a trading relationship with the mortgagor, although the purpose is not to obtain the ownership of mortgaged movable property, there seems to be no competitive relationship with the mortgagee of movable property. But first of all, from the perspective of general guarantee, collateral and other debtor's property are the guarantee of creditor's rights, and the value and ownership of these properties are an important basis for creditors to judge the debtor's solvency and then make a statement of intention. If the mortgage relationship is not publicized, creditors may have the illusion that the trust property has no right to bear. Therefore, it is difficult to call it fair to use undisclosed collateral against ordinary creditors who have a trading relationship with the mortgagor, and it will also make many third parties afraid to trade and hinder the normal trading order. Secondly, the function of security interest is mainly to ensure that the holder of security interest can obtain the exchange value of collateral before other creditors when the debt is not paid off, especially when the debtor goes bankrupt. If the undisclosed mortgage is given priority effect, so that it can fight against other creditors, publicity will not have much impact on the function of mortgage, which will inevitably lead to more undisclosed mortgages, thus weakening the value of mortgage publicity system. Finally, and more importantly, if the priority effect of non-public mortgage on ordinary creditor's rights is recognized, it will also stimulate debtors to use loopholes in the law to collude with others, make false mortgages, use non-existent mortgages against other creditors, and infringe on the legitimate rights and interests of others. In order to prevent this moral hazard, the law should also list ordinary creditors as the third party that unregistered chattel mortgage can't confront. The viewpoint of bona fide third party comes from Liu Yujie's judgment on bona fide third party in chattel mortgage dispute.