From the perspective of functionalism,the recall right is freed from the system of ownership and contract termination and reconstructed as a special procedure for exercising the real right of security as stipulated by law,obtaining the independent institutional value.It is not necessary for the seller to exercise the recall right on the presumption of interpellation or set a limit on the proportion of the buyer's outstanding payment.When the buyer in entitled to dispose the subject matter,and the retain ownership and other real rights coexist,the competition rules stipulated in Articles 406,414 and 415 of the Civil Code shall be applied;when the disposal of the subject matter damages the security interest of the seller,the seller may exercise the recall right according to Article 642,or exercise the right of preservation of the security right according to Article 406 and 408.The recall right system is designed according to the characteristics of the sale of title retention,and should take priority application in the title retention.If the negotiation of exercising the recall right fails,the seller should be given procedure options,that is,he can choose to exercise the recall right reffering to the procedure of realization of security interest,exercise the right through the proceeding or even auction off or sell the subject matter directly according to the procedure of realization of security interest.When the buyer forecloses the subject matter,Article 643 and Article 634 shall be analyzed jointly to determine the conditions for exercising the right of redemption.The exercise of the recall right does not mean terminating the contract and the rescission of contract does not die out for the exercise of the recall right.If the buyer fails to redeem within the time limit,the seller can either exercise the right of resale or claim to terminate the contract when the conditions are met.
关键词
所有权保留/取回权/担保物权实现程序/回赎权/再出卖权
Key words
the title retention/the recall right/the procedure of realization of security interest/the right of redemption/the right of resale
万方数据