Study On The Floating Pledge Of Movable Property

In order to activate the financing guarantee function of inventory,optimize the structure of credit financing guarantee,and expand the value-added business of logistics,in recent years,bank financial institutions,logistics companies and enterprises engaging in production operations have jointly developed an innovative model of inventory credit guarantee financing-the floating pledge of movable property.Theoretically speaking,the floating pledge of movable property overcomes the shortcomings of static pledge of movable property,floating mortgage of movable property and pledge of warehouse receipt,which integrates the advantages of the three systems,taking into account the liquidity of the pledge property and the guarantee capacity of pledge rights.However,on the one hand,the innovative financing model is relatively fragile and far from perfect.In the six years from 2013 to the present,the disputes of floating pledge of movable property have soared by thousands,with huge controversy in courts referencing specific cases.On the other hand,as a new type of guarantee,the establishment,duration,publication and effectiveness of the floating pledge of movable property are unique,which poses a challenge to the traditional movable property pledge theory.Based on this,this paper intends to study the series of problems involved in the floating pledge of movable property.The main body is divided into five chapters,which are as follows:The first chapter mainly introduces the construction motivation of the floating pledge of movable property.As the China Statistical Yearbook(1998-2016)shows,the total value of inventory of industrial enterprises above designated size has increased for 19 consecutive years,having reached more than 10 trillion yuan by the end of 2016,which has extremely strong financing guarantee potential.According to the Security Law and the Property Law,the system supply that can provide financing for inventory mainly includes: static pledge of movable property,movable floating mortgage and pledge of warehouse receipt.However,although the static pledge of movable property can guarantee the security of creditor's rights,it also impedes the liquidity of property;although the movable floating mortgage activates the liquidity of collateral,it weakens the guarantee of mortgage;the pledge of warehouse receipt does not completely solve the liquidity of inventory and the security of bank creditor's rights.As for the security transfer of chattel that are highly hoped by scholars,its guarantee capacity are still relatively weak.The four have not found the best balance between the efficiency value and the security value of the movable property security system.Under the reverse correction of financing guarantee practice,static pledge of movable property,movable floating mortgage and pledge of warehouse receipt are experiencing conceptual reflection and system variability: Firstly,with the increasingly prominent function of exchange value of collateral,the lien effect of the pledge right is no longer valued by the pledgee.As long as it can ensure that the pledgee has absolute control over the pledge,the direct possession of the pledge can be returned to the pledger through the system design.The pledgee only retains the direct or indirect co-occupation of the pledge,which is the model of the floating pledge of movable property derived from.Secondly,when the movable floating mortgage is established,the movable floating mortgagee often signs a chattel mortgage supervision agreement with the movable floating mortgagor or movable floating mortgagor and the supervisor to ensure the security of the creditor's rights.The mortgagee strengthens the guarantee power of the floating mortgage by means of its own supervision or supervision by the supervisor.The floating mortgage of the movable property is being quietly assimilated to the floating pledge of the movable property.Thirdly,during the pledge of the warehouse receipt,the logistics company is transformed from a simple warehousing party or a custodian to an agent of a banking financial institution,whose way of supervision over the inventory under the warehouse receipts has gradually shifted from focusing on static supervision to dynamic supervision.The second chapter mainly references on the floating pledge of movable property.To remedy the legislative omission of non-possessory security in the Civil Code,the typical countries and regions of the civil law system have adopted different paths: Firstly,Germany and Japan developed the transferring guarantee(for the aggregate movables)in the jurisprudence.Although the transferring guarantee(for the aggregate movables)established by constitutum possessorium implements publication via registration or recognition,its guarantee effect is till weak.Secondly,the French Law and Belgian Law recognize the non-possession pledge.Thus pledgers retain the possession of pledges,with the pledge contract establishing tangible movable property pledge rights which uses the registration as a means of publication.Thirdly,Taiwan Province of China drew on the US law to enact the Personal Secured Transactions Law,creating movable property mortgages,ownership reservation and trust possession.In 2015,it turned to the drafting of the Enterprise Assets Security Law,focusing on the creation of a corporate floating asset security right,and using the filing system as a publication method.In common law system,the UK's floating charge system was originally designed to maintain the trade freedom of floating charge and to motivate guarantee function of liquid assets.However,in UK,Bankruptcy Act and the Code imposed so many restrictive preference and priority rules and that the floating charge has been substantially emasculated.As fixed mortgages can be set up on more and more assets,floating mortgages are increasingly marginalized.The ninth article of the United States Uniform Commercial Code replaces the complicated classification of movable property guarantees with a unified concept of guarantee rights,strictly distinguishing the creation of security rights and the publication of security rights: security agreements create security rights and registration make security rights public,the main function of which is for the notification and determination of a security right.The article strengthens the guarantee capacity of the security right by giving the security right holder the right to benefit,the control of the deposit account and the financing opportunity of the guarantor,which has far-reaching implications for regional and international legislation such as the Model Law on Secured Transactions,the Draft European Model Civil Code and the United Nations Model Law on Secured Transactions.The aforementioned model of legislation shows that the floating pledge system of movable property should be systematically constructed based on the practice of China's financing guarantee and taking into account the international trend,especially be incorporated into the unified personal property security registration and publication system.The third chapter is mainly about the evolution of the floating pledge of movable property.The practice of logistics and finance in recent years shows that the unique advantages of logistics companies in warehousing and transportation,and the supervision of negotiable goods can eliminate the information asymmetry between bank financial institutions and production operations enterprises,and become a connecting bridge that promotes the cooperation between the two.The marriage between logistics companies,banking financial institutions and production and operation enterprises has produced the system of logistics finance,and has developed three basic business forms: accounts receivable financing,order financing and inventory pledge financing,the core of which is the floating pledge of movable property.In the practice of financing guarantee,there are three modes of operation for the floating pledge of movable property: entrusted supervision,unified credit and logistics and finance service institution mode.The basic idea is that as long as the value of the regulated property is not lower than the minimum value limitation,the pledger can increase,replace,and extract the pledge according to the needs of production and operation freely,and the pledge interest is not affected;once the total value of the regulated pledge is close to or reaches the minimum value limitation,the pledger can only handle the pledge by redemption or replacement,otherwise the goods under the pledge will stop to be sold.The difference between the three modes is mainly reflected in the integration level of logistics and finance and the development of the peripheral supply chain system.With the continuous evolution of the floating pledge mode of movable property from entrusted supervision to unified credit and to the mode of logistics finance service institutions,the liquidity and guarantee ability of inventory have become stronger.It should be noted that the floating pledge of movable property,which is the new favorite of financing,coexists with high income and high risk.The risk is mainly the credit risk of bank financial institutions,which is from financing enterprise credit risk,collateral risk,supervisor moral hazard,business operation error risk and other macro risks,and the compensation risk of logistics companies from that they have not properly reviewed and supervised the collateral and other violations and breaches of contracts.Therefore,in order to promote the healthy development of the floating pledge of movable property,a mature risk control system should be established from the data layer,practice layer and technology layer,and the data of collateral value and risk should be monitored throughout the whole process,and the financing flow,information flow and commodity flow of the financing enterprise should be monitored throughout the whole process,specializing the use of credit funds.All in all,the evolution of the floating pledge of movable property is accompanied by the modernization of logistics finance business.The development history of a logistics finance business is also essentially a history of evolution of the floating pledge of movable property.The fourth chapter analyzes the judgments guide for the floating pledge of movable property.In recent years,with the rapid development of the floating pledge of movable property,the related disputes have emerged.In response to the phenomenon of high appeal and retrial rate,and inconsistent judicial decisions,Case Study of the 7th Bulletin of the Supreme People's Court in 2017 specifically published the Fengqi Company case,but it did not play the expected guiding role.In view of this,this chapter systematically sorts out the judgment opinions of the courts and draws the following conclusions: First,the commodity financing impawning supervision agreement should be defined as the commission contract.The core of the impawning supervision agreement is that the floating pledgee entrusts the supervisor to possess,control and supervise the pledge on his behalf to assist in the establishment and duration of floating pledge.In addition,the cost of supervision is essentially the financing cost of the pledger,which should be assumed by the pledger in principle.Second,the floating pledge of movable property satisfies and activates the establishment requirements of the pledge of movable property.On the one hand,the concept of modern financing security replacing the specific collateral by the specific collateral value has become a consensus,and the value of collateral is specified by the minimum value limitation,which is in line with the essence of security interests.On the other hand,the floating pledgee can fully control the value of pledge by supervisors,personally supervising the operation of the pledger or the fourth-party enterprise.As long as the regulatory measures are reasonable and efficient,the pleder's exclusive control of the collateral can be thoroughly diluted.Third,impawning supervision disputes and loans and security disputes should be divided into cases.The legal relationships between the floating pledgee and the pledger(debtor),which is loan and guarantee contract,and that between the floating pledgee,the supervisor and the pledger,which is regulatory contract,are different.Before defining the responsibilities of the pledgor(debtor),the liability of the supervisor is either unrealistic or undefined.Fourth,the presumed-fault regulation should be applied to determine the liability of the supervisor and the fault of the pledger should not be included in the scope of consideration of the liability of the supervisor.The supervisor shall undertake the limited and supplementary liability corresponding to the degree of the fault.In principle,the floating pledgee shall not be liable to the pledger for damages or loss caused by the supervisor's fault.Fifth,anyone of the parties suspected criminal offenses such as the pledger or the supervisors does not affect the validity of civil contracts inevitably and the concurrence of civil law and criminal law should be adhered to the basic principles of litigation.The fifth chapter is to explore the system construction of the floating pledge of movable property based on the China ' s reality.The core criterion for measuring the merits of a modern movable property security system is whether it can balance the liquidity of the collateral with the effect of the security right and complete the publication in an appropriate manner(registration).Obviously,the floating pledge of movable property implies the logic of this system: First,the subject matter of the floating pledge of movable property is mainly the inventory with strong liquidity,easy to liquidate and stable value,which is suitable for investment financing.To establish a dynamic pledge,the parties must sign documents such as a pledge contract and a impawning supervision agreement,and in order to accurately determine the establishment of the floating pledge,it is necessary to clarify the delivery location of the pledge.Second,the obligations of inspecting the pledged property performed by the floating pledgee or the supervisor are related to the establishment of the floating pledges.The responsibilities of collateral supervision determine the continuation of floating pledges.the floating pledgee entrusts the supervisors to supervise or personally supervise the pledges,which is not the method of publication but only a means of strengthening the effect of pledge.Third,in view of the practice of financing guarantees,the registration of movable property pledge is becoming more and more common,and the legislature and the present doctrine domestic agree that we should learn from the extraterritorial legislation to establish a unified publication guarantee registration system,and that there is no obstacle in theory and practice for the future floating pledge of chattels to register as a public method.The main function of registration is to make the guarantee information public and determine the priority rules between the security rights of each movable property.Fourth,in the floating pledge of movable property,since the pledger has possession of the pledge from beginning to end,the floating pledgee cannot establish the floating pledge for the third person without the consent of the pledge,so it is unlikely repledging with responsibility but only with agreement.Fifth,the compensation rules for several movable property security rights coexisting in the same inventory movable property are that the special legal security right is prior to the consensus security interests,and the registered or possessed movable property security right is prior to that unregistered.After establishment of the movable property guarantee registration publication system,the priority rules of compensation shall be determined in succession with the registration time of each movable property security right.Sixth,the pledgee who has the obligation to keep the pledge of property shall be liable for compensation if the pledge property is damaged or lost due to improper custody.Seventh,if the debtor repays the debt or the pledger pays off the secured credit in advance,the pledgee shall release the impawning supervision measures or return the pledge property.Eighth,other causes of the pledge of movable property volatility are the damage or loss of the collateral,the return of the pledge by the creditor,the release of the pledge supervision measures,and the loss of possession of the pledge.