On The Perfection Of The Application Of Foreign Related Property Law In China

< p > the nature of foreign-related civil relations is the relationship of real right, and the provisions of the law applicable to the determination of the applicable law are set up in the legislative mode by imitation of civil law. The title is the fifth chapter "real right", which consists of 5 articles. In addition to thirty-sixth articles relating to real estate, the remaining 4 are new contents: thirty-seventh involve real property rights, thirty-eighth involve real property in pportation, thirty-ninth relate to negotiable securities, and fortieth involve rights of rights.

It can be seen that in the application of the law applicable to the immovable property, the real right, the securities and the pledge of rights are not regulated, the provisions of the law applicable to ships, civil aircraft, and negotiable instruments are not included in the three special laws of the Chinese Maritime Code, the Civil Aviation law and the bill law.

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< p > the real right relationship in modern society has changed greatly compared with the law of the place where the object was located. Not only the meaning of things is more abundant, but also the relationship is more complicated.

The application of the law applicable to foreign property rights involves the legislative orientation and understanding of objects, objects or objects of "real right" in the scope of legislation.

The second article and second paragraph of the property law stipulate that "the objects mentioned in this Law include real estate and movable property.

The law stipulates that the right is the object of the real right, in accordance with its provisions. "

Therefore, the property law of China only stipulates that the object is the subject matter of the real right. In principle, the incorporeal property does not constitute the object of the real right. The right of the incorporeal property is protected according to the special law, such as intellectual property law, securities law, negotiable instrument law, maritime law, company law, etc.

The object of real right in the law applicable law of [3] involves real property, movable property, movable property, securities and rights in pportation, basically consistent with the object of our civil law and special law, but it is not comprehensive.

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< p > I believe that on the one hand, the object of foreign related property rights should be consistent with the provisions of the < a href= "http://www.91se91.com/news/index_c.asp" > civil law < /a > and the special law.

For example, the thirty-ninth law of the law applicable law stipulates the application of the law of negotiable securities [4], but it is not consistent with the existing domestic substantive law in terms of the concept and scope of legislation.

The maritime law of China stipulates the bill of lading as a commodity security, but does not involve the application of the law in the aspect of real right. China's bill law stipulates the application of the law as a negotiable instrument for money and securities, but does not involve the application of the law in the aspect of real right.

There is no concept of "negotiable securities" in our current legislation, and it is inappropriate to introduce the law of "unified" securities in the applicable law of the law without the distinction between various kinds of securities and the unreasonable design of clauses. In accordance with the "well-known" securities in the current legislation, such as bills, bills of lading, securities (stock and corporate bonds, etc.), the provisions of < a href= "http://www.91se91.com/news/index_c.asp" > < /a > apply in their respective real rights respectively.

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< p > on the other hand, < a href= "http://www.91se91.com/news/index_c.asp > > Foreign Affairs < /a > legislative matters of property rights adjustment shall cover and distinguish ownership, usufructuary right and security interest.

According to the provisions of the second and third sections of the property law, the real right includes ownership, usufructuary right and security interest.

Then, the thirty-sixth law of the law applicable law stipulates that "the law of the place where the real estate is located" means that the "real property" includes the ownership of real property, the usufructuary right and the security interest (the right of mortgage). The thirty-seventh and thirty-eighth articles of the law stipulate the legal application of the "movable property right" and "the movable property right in pportation". Does it also mean that the "movable property rights" here include the ownership of the movable property, the usufructuary right and the security interest (including mortgage, pledge and lien)? The security interest is a fixed property right set on the obligor or the third person's specific object or right in order to ensure the realization of the creditor's rights.

Security interest is subordinated to property and must be subordinated to the creditor's rights secured by it.

However, on the issue of foreign guarantee, the application of the law of security interest is not applicable to the law which is attached to the creditor's right secured by it. Instead, the law of the place where the collateral is located should be applied; for the legal security interest, such as lien and priority, the applicable law of the main creditor's right or the court's law should also be considered.

The fortieth law of the law applicable to [5] only stipulates the law application of the right of pledge in respect of the real right of the right, and does not stipulate the law applicable to the right of ownership. In terms of pledge, it only stipulates the law applicable to the pledge of rights, and does not stipulate the law applicable to the pledge of movable property.

All these need to be considered comprehensively in legislation.

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