所有权保留制度中的取回权

On the Right of Retrieval in the Retention-of-Title System

《民法典》相较于《合同法》对所有权保留制度进行了补充规定,进一步揭示了我国目前采物权缓和主义,并且在形式主义下兼采功能主义,所有权保留具有担保物权的性质。保留卖方的取回权是实现其担保权物权功能的权利,取回权的行使不需要解除合同,并且保留买方支付一定比例的价款产生限制保留卖方的取回权的效果并不合理。在标的物发生添附时,根据添附物的所有权是否移转于第三人,保留卖方按照物权追及或物上代位规则,实现其担保物权。在取回权发生后,根据实际情况发生保留买方的回赎权和保留卖方的再出卖权。

The Civil Code has supplemented the retention-of-title system in comparison with the Contract Law, further revealing that China is currently adopting the property rights easing doctrine and functionalism under formalism, and that retention-of-title has the nature of a security right. The retention of the seller’s right of repossession is the realization of its security right in rem, the exercise of the right of repossession does not require the rescission of the contract, and the retention of a certain percentage of the price paid by the buyer to produce the effect of restricting the retention of the seller’s right of repossession is not reasonable. In the case of additions to the subject matter, depending on whether the ownership of the additions passes to a third party, the retentionist seller realizes its security right in accordance with the rules of recovery in rem or subrogation in rem. The retention of the buyer’s right of redemption and the retention of the seller’s right of re-sale occur after the right of repossession has arisen, depending on the factual situation.