On Real Security From The Point Of Its Composition And Evolution Of Its Categories

Real Security, known for’the most active field in civil law’, represents the fluid secure transactions. Therefore, research into real security is of both practical significance and theoretical value. This thesis is intended as a description by means of analytical methods, such as comparative analysis, historical analysis normative analysis and positive analysis, which is both a grand narrative and micro-analysis. This description has composition and categories of real security as its starting point. We can also make inquiry into considerations involving legal policy of the composition and evolution of categories of real security.This thesis comprises of introduction, main part and conclusion. In the introduction, we will set out the writing motivation, sketches existing research on this thesis, exhibits analytic methods, and show its structure. The main part is divides into seven chapters. Chapter I defines what is real security. Chapters II, III and IV describe the composition of real security from the point of history and comparative law. Chapter V depicts the evolution of main categories of real security. Chapter VI is devoted to real security in our country, including its history, its design in Real Rights Law of PRC and whether security transfers being adopted in China. Chapter VII reveals the legal policies underlying the composition and evolution of main categories of real security. Conclusion is intended to summarize this thesis and extend the main idea. This thesis concentrates on the composition and evolution of categories of real security. The composition of real security is dynamic. Real security is comprised of Fiducia and Pignus in roman law. Real security has as warranty for performance of obligation as its task in roman law. Real security distinguishes between Altere Satzungand neuere Satzung on the one hand and between pledge of movables and pledge of immovables. Prohibition of Usury in Cannon Law impacts the development of real security. Real security is divided into pawns, privileges and hypothecs in the Code Napoleon. However, reform of real security always happens in French law because its law of real security has serious defects that can be traced back to roman law. In BGB, real securities over immovables are multiple, which are mainly comprised of Hypothek, Grundshuld and, Rentenschuld the model of which is Verkehrshypothek. In regards as real security over movables and rights, the only form is respecitively Pfandrecht an beweglichen Sachen and Pfandrecht an Rechten in BGB. However, the popular forms of real securities in German are (Sicherungs) grundschuld, Sicherungubereignung and Eigentumsvorbehalt, which respectively replace Hypothek, Pfandrecht an beweglichen Sachen and Pfandrecht an Rechten. Mortgage is main form of land security interest in common law. Secured transactions in English law are constructed following formalism. However, UCC article 9 organizes’security interest’according to functionalism.Categories of real security are also evolving. There was once a time when the debtor has no personal liability besides the value that the pledged thing can afford. In this time, real security belongs to mere liability in rem, one form of which is right of Dian. However, this liability almost disappears in modern times. In regards as its structure, real security primarily appears in the form of security transfers, which transform into limited right. However, it seems that the co-existence of the former with the latter can be found in modern law. In terms of its content, real security grant its holder the right to use and profit from the pledged thing. However, that happens in agricultural times. In the time of market economy, real security only gives its holder the right of control of the value of the pledged thing. Now, attention appears to be paid again to the use and profit of the pledged thing, though its role is auxiliary. Both are grounded in legal policies, such as absolute private ownership, tension between economy and law.In ancient China, right of Dian plays an important role in money-lending. However, the existing system of real security of our country derives its source from the civil law family. Notably, the fact that Real Rights law of PRC accords with the civil law family in respect of real security is only the surface of the problem. In fact, it has no obvious difference from American law.