On the right of the seller's warranty System

[Paper Keywords] system of property rights warranty act theory Legislation
[Abstract] sale is a legal contract, the most important in life, right warranty is a contract for the sale of the core of the system. The right to warranty liability is based on the occurrence of the property claims generated in the process of change, in close contact with the Theory of Property Act. Legislation in the Theory of Property Act, the rights of warranty system has its value, but the theory of legislative behavior in non-property rights model, the right warranty system and the system design of the existing Law on the existence of conflicts, contradictions.

First, the right system, the basic theory of warranty
After the establishment of contract for the sale valid, the seller bears imposed in conformity with the contract to deliver the subject matter and the buyer's obligation to obtain ownership of the object, but also bear the responsibility of the two warranty, that warranty against defect warranty liability responsibilities and rights. This Article discusses the right to expand warranty liability.

Defect is specific to the concept of Civil Law, simply, refers to the shortcomings of defects. The right to defect, that trading of the ownership or sale of the subject matter as other rights are incomplete or restricted rights. The seller shall be the subject of security as a trading the right thing and fLawless, this is one of the primary obligations of the seller, or should bear the responsibility.

The right warranty originated in Roman Law on the recovery guaranty system. Roman Law on the recovery guaranty means the third pArty based on ownership, usufruct or mortgage, to recover from the buyer wins the hands of the subject matter of sale, the seller is the buyer bears responsibility for not chasing the guarantee wins. However, Roman law did not impose on the seller to the buyer get full rights and responsibilities, just so the seller for damages. Modern States, following the Roman Law, the development of this system. <<Italian Civil Code>> defense obligations imposed upon the seller, "" German Civil Code>> performance of the obligations of the buyer acquires a right, and <<French Civil Code>> provides that the seller has the obligation to prevent the chase wins.

The question is the effectiveness of responsibility between the title, that is, the subject matter delivered by the seller's right to exist defects, the buyer can take relief measures. Defect warranty on the Rights of the effectiveness of the provisions of different countries. Most of the Civil law countries by debt non-performance provisions. such as Germany, France, Japan, China and France have provided damages, rescind the contract, remove blemishes, refuse to pay the price, the price has been paid may request the return of the purchase price. In the UK, when the buyer of the subject matter made by a third chased the subject matter wins or sale of the trademark or patent infringement, the violation of the statutory implied terms belong to the seller, the buyer may request the seller for damages. In the U.S., breach of warranty obligations of the seller, the distinction between the behavior constitutes constitute a material breach or minor breach of contract to deal with. constitute a material breach, the buyer may rescind the contract and claim damages; constitute a minor breach of contract, the buyer can not rescind the contract, you can only claim damages.

For the right to defect, the seller shall bear civil liability is based on what? Mr. Zheng Yubo in (of all Obligations of the Civil Code> "(the book) a book that there are five theories:
1. Implied warranty deed says. The responsibility of the occurrence of such security is due to implied contract between the pArties of the results, however Warranty real responsibility for the law, a statutory responsibility, not because the pArties intention (implied ), so that undesirable.

2. The rights and obligations for non-compliance, said. This says that the sale contract, the seller has the right to transfer the obligation, that is, the buyer bears the obligation to obtain their rights, so the warranty liability that is not complied with such obligations basis. This is a German scholar of the pass, said to be contingent on the sale of so-called defect was first established, in fact, existed from the beginning is not the problem, not subsequently can not, there is no debt to speak of non-compliance, to this responsibility, not based on property rights transfer of obligations from, or contract, such as free gift, there are obligations between the transfer of property title, why do not occur defect warranty? So that still need to consider.

3. Defect does not fulfill this obligation, said. Defects that the seller has to inform the subject of obligations, if not to fulfill this obligation, the warranty should be held responsible, which was a few theories. The wrong place there are two: First, the civil law transactions the obligations of the seller are not required, since the interpretation difficult to identify it. The second is the duty of disclosure is not only an obligation, the obligation of non-compliance and therefore responsible, since there should be intentional fault of the obligor for the elements, but warranty responsibility is to a liability without fault. It can be seen, this theory wrong.

4. To maintain the safety of transaction paid said. That although the warranty provisions of the trading being responsible, but also for other paid contract, the warranty shall be the basis of your office, when to seek compensation for the contract on the characteristics. In other words, Contract law is equivalent to maintain the balance paid, membership transactions safety, special protection, so the warranty system set up, this is the Japanese scholars of communication, said more could be taken.

5. Protection of the special responsibility of the buyer expect that. Is also undesirable, because of warranty issues among not only the sale and purchase contracts with other contracts are also paid.

The author believes that right is based on warranty claims responsibility for changes occurred in the process of property have a responsibility for safeguarding transaction security system set up by a civil, rights, acts of warranty system and property rights theory of close contact.

Second, property rights under the theoretical model of behavior warranty system
Theoretical model of behavior in the property, the legal burden is divided into acts (claims actions) and disposition (conduct and Real Property Act standards). The burden of behavior compared with the disposition, the former does not apply the principle priority of the burden the effect of acts of people not to act as an effective element of whether the disposition; and priority actions for behavior problems, and the perpetrator has a right to dispose of effectiveness as a core element.

The right warranty system, and the legislature whether to adopt the theoretical model of Property Act has close ties.

The right warranty is a seller on the sale of the underlying security or rights, third pArty may not claim any right. A third party may claim rights to the buyer the case, generally there are five:
1. All rights belong to the third person (selling other things); 2. The right to belong to the third part (without the consent of the other owners sold a total of thing); 3. The right to limit by a third party (selling lease, sell collateral); 4. the sale of debt or other rights as a subject of rights does not exist in the sales contract was entered into; 5. securities for public notice invalid. the production of the five defects of right, which is due to sell out the first four arising from acts have no right to dispose of.

The so-called right disposition, there is no right to dispose of the de facto and legal right of disposition, in this case the legal right of disposition, that no right to dispose of property of another person's behavior corresponds with the disposition concept. This will make people doubt, no right to dispose of the legal consequences that? no right to dispose of the responsibility and rights of the relationship between warranty?
Based theory of property law, no right to dispose of undetermined effect will cause the consequences of behavior. No right to dispose of the property of others after the ratification by others, and no right to dispose of into right action, right of warranty liability does not occur. If no right to dispose of property of others identified with the third contract for the sale legislation, the right to dispose of the rights of people who, without ratification, the contract for the sale of the claim is effective, sanctions act invalid behavior does not affect the validity of claims, therefore, no right to dispose of the seller shall be relieved from fulfilling its obligations, including obligations to guarantee the right to flawless, non-compliance, should bear the responsibility for warranty rights. German Civil Code and Civil Code of Taiwan to take this law model.

Third, the theoretical model of behavior of non-property rights under the flawed system
Do not recognize the case of Property Act, the adoption of a unified legal concept, the so-called acts of Property Act usually presents the performance claims. Therefore, selling things and selling others people of things there are no right to dispose of the contract itself constitutes, no right to dispose of this nature, determines its behavior in non-property status under the effect of uncertain effectiveness. China (Contract Law "> Article 51 provides:" no right to dispose of a person who entered into a contract to obtain sanction The contract is valid. "Article 132:" betraying the subject matter, should be owned by the seller or the seller is entitled to dispose of. "
Since China does not adopt legislation theoretical model of Property Act, the property change is of course the effectiveness of the contract, such as mining the seller and the right to dispose of property of others and the others there were items, such as right holders or other owners refused to ratify, will will seriously undermine the rights of people with genuine interests of other owners, in violation of civil law for the pursuit of justice, it will not be entitled Disposition of civil contract entered into for the effect to be determined. But this question arises, Contract Law Article 51 with Article 150 (rights defect terms) of the conflict. no right to dispose of a contract, ratified by the right people for the right to dispose of the contract, the contract valid, it does not matter right defect problems, such as no right to dispose of a contract, without the right were ratified, the contract is invalid, null and void the contract, payment obligation does not matter, of course, there is no room for defects warranty. So, it was said: for Innocent. on the nature of the system acquired in good faith, scholars generally understood to be the original title form of acquisition, acquired in good faith that the law recognized no right to dispose of the premise that behavior is invalid, and the third from the right person at the transferee dispose of the subject matter without legal reasons, but because of third party in good faith, the law allowed exceptions to keep subject matter, which the law made in good faith as a third reason to keep the subject matter. practically no punishment system under contract law, no right to dispose of the contract is only effective solution to determine the issue invalid, good access to the system, will provide in property law to address the protection of the buyer in good faith.

As can be seen from the above, the use of bona fide acquisition system, from the perspective of transaction security protection, only to resolve ownership of the goods, there is still no right to the application of defect warranty. The contract of sale, if the third party in good faith, no right to dispose of people with bona fide third contract between the valid legal basis for the third person to obtain ownership of the subject matter, the real rights shall not chase wins, bona fide third party to obtain title to the subject matter of flawless; if a malicious third party, no right to dispose of human and malicious avoidance of the contract between the third person, third person may not acquire ownership of an object, right after the citation has not obtained the contracting powers, it does not have the right to void the contract of warranty defects problem, the contract is invalid, no obligation, how can the responsibility? And, good access to the system, for the premise that the movable property, and any of your warranty rights are not limited to the subject matter of the estate. right warranty is a seller responsibility to establish the original intention of made to ensure that the buyer's status as owner, to ensure that other third party does not claim any right to the buyer, and not limited to, warranties of movable object.

Defects in the production of the five cases the right, in addition to selling other things, selling things with other people there, and claims to public notice with the Securities and void because of these four cases associated with the right to dispose of outside (contract law in China only involving the first two), there is a situation that you sell the lease and collateral rights arising from the warranty liability. sell the leased property, although not selling unauthorized disposition of collateral warranty arising from responsibility, but the two cases are still theory associated with the Property Act. Links to Research Papers Download http://www.hi138.com sell the leased property, the seller will sell the leased property subject matter for the informed buyer, willing to take their unfavorable risk liability, there is no right to warranty liability. seller did not inform the buyer, before the expiry of the lease, the sale does not break lease, the buyer has the right to request the seller the right to claim the right to security flaws, but the lessee can priority against third parties, that is, the buyer, and therefore selling the lease, the lessee to claim priority, the adoption of the legislative model theory of Property Act, claims the contract valid, but the buyer does not have priority against the right to buy Leopard lessee, the seller may claim rights to the warranty claim. but not adopted legislative model theory of Property Act, the lessee in order to pre-emptive rights against the buyer, the contract for the sale invalid, did not use the right warranty liability value .

Selling collateral mortgage is a property, after the registration of collateral material on the chase and have the legal effect, in order to accelerate economic circulation, better play the function of the property, the law allows property owners in the mortgage collateral during the transfer of property establishment of the system is the right to act in good faith to protect the assignee, to maintain fair and safe transactions, legislative acts adopted model property, sell the mortgaged property sales contract entered into is valid. contract, mortgage and property lies with the force of law to recover , regardless of where the transfer of collateral, as long as the time of performance, the debt was not fulfilled, can the mortgagee in respect of the mortgage collateral. as collateral to buy by the party, the seller may claim rights to the warranty claim. the case of leased property and sell the same property of acts of legislation is not adopted theory, the law allows property owners during the transfer of the mortgage collateral, but in order to protect the mortgagee and the transfer of property of the assignee of the legitimate rights and interests, transfer of property law subject to certain restrictions. If (Security Act) Article 49 provides that mortgage period, the mortgagor the mortgage registration of transfer of goods means, the mortgagee shall notify and inform the transferee that the transferred property is mortgaged, the mortgagor fails to notify the mortgagee Right or inform the transferee, the transfer is invalid. Accordingly, under our current legislative model, selling the mortgaged property rights of Australia lost the use of the value of the system warranty.

IV, Conclusion
Civil Code currently being developed in China as an important part of civil law, the seller's right to the positioning of defects warranty, architecture, legal workers, we should pay attention to one of the issues. In my view, better solutions Property Act Theory the right to dispose of by lease and sell the mortgaged property rights arising from the theory of defects warranty issues. because according to theory of Property Act, a contract for the sale includes two legal acts: First, make payment behavior of credit and debt claims, two is the disposition of property law, punishment and penalties of the subject matter or the price of gold right behavior. These two actions are independent, disciplined behavior does not depend on property claims act, as long as the subject matter between the parties or rights transfer agreement . claims countless acts of behavior does not affect property rights, property disposition actions null and void does not affect the validity of claims. Therefore, no right to dispose of other people's property rights were ratified without a valid contract of sale entered into after the establishment of right action, that is sold people should carry their share of obligations, including obligations to guarantee the right to flawless, do not perform, should bear the responsibility for warranty rights. As for selling the lease, sell the mortgaged property, the sales contract is entered into, while not the result of right action, but Both of these situations has its particularity, that property rights claims against the third person in possession, according to the independence property, without due of the characteristics, the contracts are still valid, have first refusal of the tenant and have priority claim The buyer claims against the mortgagee, the debt buyer could claim the rights to the seller warranty claim. theory of legislative acts in the property model, property rights protection act theory both justice and security of transactions, but also solved the right warranty for defects in the theory.

However, the theory does not accept the State Property Act, in particular the framework of our current legislative system under the provisions of the simple approach is not the right warranty system. There are two reasons, a non-property rights theory of legislative behavior mode, almost no the right warranty for defects room, even if there have been limited to a narrow range. such as selling other things, selling things with other people there, acts such as quasi-property rights, no right to dispose of people signed without ratification contract is invalid, null and void the contract, no payment obligation, but where's the warranty? Second, the right to warranty provisions of the existing system, system conflict is not so recognized is not entitled to dispose of its contracts were invalid, and enjoy priority right to buy the lessees and the martyrdom priority for repayment between the mortgagee and the buyer's contract is invalid, null and void the contract why have warranty? system and scientific legislation, legislation to save costs and promote the lowest transaction costs of, is to assess the legal value of the basic criteria.

However, the focus on the future, look at the world, in order to make our Civil Code as currently drafted, have some influence in the world, as a representative of the Civil Code of the 21st century, then the system should be in the right warranty with international standards, to the world conventions and legal approach. I agree with China's national conditions according to Property Act does not adopt the theory of good, but not adopted in the case of property act theory, a simple system to delete the right warranty as to the <"International Sale of Goods Convention> > and <<Commercial Contracts Code "> close as well. closer approach is to reserve the right to warranty a long history of this system, because the buyer entered into a contract for the sale of the purpose is to obtain ownership of the same original owner, this is the right warranty system, the basic content, is its value. to keep this system, we must change, coordination and conflict with the terms of the system content, to like the <"International Sale of Goods Convention>> and <<Commercial Contracts Code "> as the right to dispose of as a valid contract, occur right defects will be handled as non-performing debt. support contracts, including legislation and the contract is valid support contract, the contract represents the latest trends in legal practice, this trend highlights reflected in the "<Commercial Contracts Code"> in the. <<International Commercial Contracts) Section 4,5 provides that: "the interpretation of the provisions of the contract shall be valid for the purpose of making them all, not excluding some of terms effect. "
In short, the theory of legislative behavior in non-property mode, we should not only inherited the tradition of civil law contract for the sale of the classic elements: the right to warranty the system, but also learn from and absorb international conventions, rules, results of the latest legislation, so that more of the Civil Code become standardized, systematic and scientific. Links http://www.hi138.com Research Papers Download