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Renmin University of China Law School
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JUN 2018 ARTICLE: A COMPARATIVE STUDY OF THE CHINESE LAW OF CONSTRUCTIVE DELIVERY FROM AN ENGLISH COMMON LAW PERSPECTIVE


        Abstract: All three forms of constructive delivery, namely, traditio brevi manu, traditiolonga manu, and constitutum possessorium exist in both Chinese law and English lawwith notable differences in each form. As regards traditio brevi manu, the current uniquerequirement of the transferee’s prior possession being “legal” under Chinese law cannotbe found in or deduced from its English counterpart. As regards traditio longa manu, themajor difference between the two jurisdictions is that the third-party possessor’sattornment is necessary condition for a valid traditio longa manu in English law whereasit is not in Chinese law. As regards constitutum possessorium, while English law acceptsa wider scope of scenarios than Chinese law, passing of property in English law by wayof constitutum possessorium is only effective between the parties themselves but not viza viz third parties whereas it is effective in both respects in Chinese law. Compared to amess in English law regarding the issue of symbolic delivery, the simple, clear andnegative attitude towards symbolic delivery in Chinese law is to be applauded, and is tobe regarded as a Chinese voice that should be insisted on and be brought into theupcoming Book of Property of the Chinese Civil Code.

Full Text A COMPARATIVE STUDY OF THE CHINESE LAW OF CONSTRUCTIVE DELIVERY FROM AN ENGLISH COMMON LAW PERSPECTIVE.pdf

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