The Vegetarian, Foucault, Power and Discourse, Subjectivity

Abstract

Article 388 of the Civil Code introduces the concept of 'other contracts with guarantee functions', placing retention of title sales contracts, financial leasing contracts, and recourse factoring contracts on par with typical guarantee contracts, thereby conferring the effects of guarantee rights on such contracts from the perspective of functionalist legislation. Regarding retention of title contracts, the Civil Code, through Articles 641 and 642, introduces registration against third parties rules and provisions for reference to the enforcement procedures of security interests, effectively treating the seller's retained ownership as a security interest, thereby diminishing the attributive nature of the ownership in the subject matter and substituting it with priority right of satisfaction from the value of the subject matter. The introduction of functionalist legislation has also prompted the Supreme People's Court to conduct certain cleanups and revisions to judicial interpretations during the implementation of the Civil Code. The Provisions of the Supreme People's Court on Several Issues Concerning the Application of the Enterprise Bankruptcy Law of the People's Republic of China (II) (Judicial Interpretation No. 18 of 2020) (hereinafter referred to as the 'Bankruptcy Judicial Interpretation (II)') is also within the scope of modification, with Articles 34 to 38 specifically stipulating the specific rules regarding retention of title in bankruptcy proceedings. However, this modification has not made any substantive changes to retention of title, still regulating it based on the perspective of ownership formation under formalism. This has led to ambiguity in the nature of the seller's rights in bankruptcy proceedings. Furthermore, the uncertainty regarding the nature of the seller's right of reclaim has resulted in its realization path being inconsistent with the legislative stance of the current Civil Code. Specifically, when the seller is bankrupt, it may exercise the right of reclaim under Article 642 of the Civil Code; whereas when the buyer is bankrupt, the right enjoyed by the seller should be a separate right (priority claim).