On The System Of Transferring Guarantee

The system of transferring guarantee comes and develops into a untypical guarantee system, which meets with the urgent needs to finance and use the movable property of the market economy. The transferring guarantee has already been applied extensively in the following countries, such as Germany, Japan, U.S.A, etc. In our country, financing and usufruct of the movable property are also urgent needs. As an important system that can meet this kind of need, the transferring guarantee whether should be inscribed into the Civil Code our country or not and how to be constructed, which turn out be the current issues that must be researched promptly. Firstly, in order to discuss this problem systematically and deeply, The author narrates the conception, nature and function of transferring guarantee system and holds that the essence of transferring guarantee is the real right for security. Secondly the author investigates the system of transferring guarantee of such countries as Germany, Japan and U.S.A, etc and expounds some of provisions that can be used for reference to the transferring guarantee system in our country. Finally, the author identifies the necessity and feasibility of creating the system of transferring guarantee in China. The author thinks that the system of transferring guarantee and the system of chattel mortgage are totally the same in the aspects of function, the methods of creation, the methods of publication and effects. So the system of transferring guarantee should take the place of the system of chattel mortgage. In this part, the author clearly discriminates between transferring guarantee and house mortgage in the mainland of China, and holds that the house mortgage is actually a complicated transacting form, and which is not suitable to be categorized into the transferring guarantee system. This article insists that the method of transferring guarantee of real property should be adopted the effectism of registration and the method of transferring guarantee of movable property should be adopted in establishing in written form——antagonistic to registration. At the same time, in order to remedy the defects of this method of establishing in written form——antagonistic to registration, this article also puts forward some corresponding legislative suggestions.