Study On Assignment Guarantee System

In the civil and commercial transactions,as an ancient transaction mode,the transfer guarantee still maintains the exuberant vitality in the modern society.However,different countries and regions have different understandings in theory and judicial practice.Based on this,this paper will study the transfer guarantee from the following aspects,to provide a meager intellectual support for the theory and judicial practice.The first chapter discusses the raising of the problem--starting from the judicial practice.In judicial practice,there is a dispute of "selling in the name of loan".For such a judicial case,its form of expression is varied.Therefore,in the judicial judgment,the appellation of this transaction mode is also different,such as "sale guarantee contract","guarantee sale contract","post transfer guarantee","transfer guarantee" and so on.In order to have a clear understanding of this kind of contract,the author analyzes the object of the judicial documents and analyzes it in a typed way.There are the following disputes in judicial practice about the effectiveness of civil act of transfer security: First,the dispute between valid theory and invalid theory.The theory of invalidity holds that such contracts violate the principle of legality of real rights and belong to the act of deviating from law.The parties are suspected to have connived in the expression of false intention and have violated the prohibition of liquid contracts,so their acts are invalid.The valid theory takes the opposite view.Second,the public way to complete or not.In terms of the publicity of the assignment security,there are some differences in the ways of publicity due to the different subjects of such contracts,and such differences also lead to different opinions of judicial judgment.As far as real estate is concerned,the transfer of ownership of the security property is usually indicated by the way of record registration or advance registration between the parties.For the record registration or advance notice registration,there is a judgment that it has public nature,has the effect of real right change.On the contrary,a judicial judgment that does not conform to the disclosure requirements of the change of real right cannot be regarded as the change of real right.Third,the priority of the dispute.In terms of its priority,in judicial practice,some judicial documents hold that,based on the publicity of real right,the creditor's right of this kind of contract has the priority to be paid,and some judicial documents hold that the creditor's right of this kind of contract does not have the priority to be paid,but its creditor's right is also different from the general creditor's right.In practice,there are judicial documents that treat the creditor's right of the security obligee as general creditor's right.Fourth,there is a dispute about the effectiveness of the implementation mode clause.For the realization of creditor's right or real right of security agreed in the contract of assignment and guarantee,judicial precedents also show different judgment thoughts.Some think that it is prohibited by liquid contract and therefore invalid.If it is considered to belong to the category of autonomy of parties' will,its validity should be recognized.The above-mentioned judicial chaos will seriously affect the authority of the judiciary.Based on this,the author believes that it is necessary to sort out such contracts,in order to avoid the occurrence of different judgments in the same case,establish a unified judicial standard,establish judicial authority,and provide theoretical support and judicial guarantee.The second chapter discusses the theoretical basis of assignment guarantee.Theoretically,it is believed that the theoretical origin of the transfer guarantee system is the Fiducia and Treuhand theories of German law.Taking time as the clue,there are two theories: ownership structure theory and security right structure theory.According to the theory of ownership structure,the transaction mode of transfer and guarantee is characterized by the transfer of ownership,and the transfer of ownership is divided into the theory of absolute transfer and the theory of relative transfer.The theory of absolute transfer holds that it belongs to the absolute transfer of ownership both between the parties and in the external relations,while the theory of relative transfer holds that the ownership does not transfer between the parties,but only in the external relations.According to the theory of security right construction,the transfer of ownership is not a real transfer,and it is only for the purpose of security.Neither the ownership structure theory nor the security right structure theory can explain the transfer security system well.On the basis of the American chattel security transaction system,the author puts forward a third interpretation model,that is,the theory of dual fusion combining formalism and functionalism.Ownership structure and security right tectonic said is formalism in continental legal system under the framework of interpretation system,guarantee the movables guarantee trading system is explained in the framework of functionalism in guarantee system,and the concept of functional is not constrained in the guaranty contract,name,but is examining whether has the guarantee function,everything has the guarantee function into the category of guarantee.In order to keep the integrity of the real right system and concept of security in the civil law system,we should combine functionalism with formalism to explain the security system of assignment well.The third chapter studies the validity of the assignment guarantee contract.In judicial practice,the assignment guarantee contract is often presented in the form of the appearance that does not match the name,that is,the transaction mode of "sale in the name of loan" appears.For such a transaction mode,two contracts will be involved,namely the loan contract and the sale contract.As a creditor's right contract,a loan contract has the effect of confirming a creditor's right.However,the validity of the sales contract varies from academic point of view to practical case.If valid,the rights and obligations between the parties shall be defined as a sales relationship,namely the payment of the price and the delivery or registration of the subject matter;If it is invalid,whether only the loan contract is to be performed,and the registration and publicity of the existing property and the priority right of the security right are not to be solved.How to view the validity of sales contract itself will become the focus of research.As far as formalism is concerned,it is difficult for the contract that the sale contract itself still belongs to the creditor's right to have the effect of real right change,and only after registration or delivery can it have the effect of real right.From the perspective of functionalism,the sale contract itself is only to provide guarantee for the performance of the loan contract,which occurs because of the guarantee function of property,and cannot ignore the effectiveness of the assignment guarantee from the perspective of functionalism based on the name of the contract or the appearance of the transaction.The fourth chapter elaborates the publicity of security real right in the transfer guarantee.As an important means of real right of security,the way of publicity is different because of the different objects of right.In judicial practice,the public notice of real estate is manifested as record registration and advance notice registration.Under the continental law system,it involves the effect of real right change.Since the record registration is considered to be the unfinished public notice of real right,it does not have the effect of real right change.The notice registration is considered to have obtained the effect of real right.Assignment guarantee belongs to atypical guarantee,and there is no corresponding registration organization in real life,while notice registration is the public way of real right change,which has the public nature,so it can produce the public effect.In judicial practice,notice registration can be used as the public way of guarantee of real estate transfer.The biggest criticism of the publicity of the guarantee of transfer comes from the way of publicity of the guarantee of transfer of chattel.In judicial practice,possession is often changed to be the mode of publicity,but this mode of publicity has been denied by the theories and legislation of various countries.At the same time,including the effectiveness of possession itself has been controversial for academic circles.How to establish the public way of chattel transfer guarantee system has also become the goal of theoretical and practical departments to explore.The author proposes to establish a unified system of public notice,registration system and right relief mechanism to solve the problem of public notice of security real right in the transfer guarantee system.The publicity of other property rights,including some new property rights,should be adopted in different ways according to the different object of the right.The fifth chapter explores the priority of assignment guarantee.On the premise of recognizing the effectiveness of the assignment guarantee,the priority of the assignment guarantee should be taken into consideration.The priority of guarantee should be considered from the perspective of guarantee itself,social attribute and transaction security.For real estate,guarantee due to incomplete property right registration system in China and other civil law subject at the same thing on other property rights priority,such as in the construction project priority,general buyer expect priority,consumer rights real right priority,ship carrier of maritime lien,etc.,to guarantee rights between man and other main body of the objects on the priority of rights conflict and the liquidation of a priority,and in the bankruptcy process to guarantee the protection of the right of people,occur successively pick between right selection problem.For chattel,it involves floating mortgage of maximum amount,chattel mortgage,chattel pledge,lien and other rights as well as the protection of the general rights of the buyer,and it also conflicts with the assignee and involves the order of the realization of the right.The author thinks that the priority effect of the transfer guarantee should be recognized on the premise of the completion of the public announcement of the change of property rights.The sixth chapter analyzes the way to realize the guarantee right in the guarantee system of transfer.In terms of the real rights for security is implemented,the perspective is divided into liquidation type and ownership type two kinds,in judicial practice,however,agreed between the parties often "debt nonperformance,due to performance of the business contract" and "fails to perform the debts that are due,the creditors thereof may dispose of the property for security",for such an agreement shall be as the case may be whether belong to liquid terms.For the provisions of the liquid,the Civil Code has changed the provisions of the original property law and the security law on the nature of the liquid.In terms of liquidation methods,there are attribution liquidation and disposal liquidation,and different liquidation methods can be adopted according to the different right objects,especially the pledge and guarantee of right transfer type stock.Because of the particularity of the subject matter of guarantee,the forced liquidation behavior implemented by the creditor should be recognized.The way of its behavior not only will not damage the debtor's rights and interests,but also conducive to the protection of the rights of other creditors.The seventh chapter puts forward the academic views on the reconstruction and development of the transfer guarantee system.Said formalism under the perspective of ownership structure and functional perspective of security right structure theory,are difficult to transfer the ownership of guarantee form for perfect interpretation,the structure of the dual fusion structure to give more reasonable explanation,does not destroy the integrity of the civil law system of real rights for security,and to guarantee the rights of the structure,the ownership shift transformation and in Anglo-American law system under the framework of the existing legislative cases of success,also meet to the requirement of guarantee system of the world economy.It is the trend of the development that the system of guarantee has become a culture.In the legislative mode,we should choose the mode that coexists with the system of mortgage,and we can refer to the system of real right of guarantee.The Civil Code.Real Right Series,to some extent,also uses the dual fusion theory of combining functionalism and formalism for reference,which provides the proper text preparation for codification of transfer guarantee.