Nominal ownership is manifested in different forms in civil law.In China's Civil Code and judicial interpretations,the most typical ones are four types:retention of ownership sales,transfer guarantee,trust,and indirect agency.So,what is the nature of these rights in substantive law and the path for the rights holders to realize them in bankruptcy proceedings?It is the most contentious issue in both judicial practice and theory.Firstly,do these nominal ownership norms constitute false legal acts under Article 146 of the Civil Code?This article argues that these symbolic acts of nominal ownership do not constitute false legal acts,especially the dual functions of ownership retention and guarantee as stipulated in Articles 641-643 of the Civil Code of China,which are difficult to justify theoretically.In a retention of title sale,the seller's right to terminate a contract under the Civil Code is preferred over the administrator's right to terminate or perform a contract under bankruptcy law.The principle of'substitutionary property'must be implemented in the right of retrieval-if the subject matter of the right of retrieval does not exist,it should be allowed to retrieve substitute property.In a trust relationship,trust property belongs to the settlor rather than the trustee.Therefore,when the trustee goes bankrupt,it does not belong to the bankruptcy property and should be retrieved by the settlor.In the transfer guarantee relationship,the nominal owner can only exercise the right of exemption when the other party goes bankrupt.In indirect agency relationships,it is necessary to determine which rights to exercise and who to exercise them based on the specific relationship between the principal,trustee,and third party,but it cannot deviate from the purpose of the commission.
关键词
所有权保留/让与担保/破产法/取回权/别除权
Key words
Ownership Retention/Transfer Guarantee/Bankruptcy Law/Retrieval Right/Exemption Right
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