Study On The History Of The Fluidity Contract

The fluidity contract is a general designation of articles refer to the agreement between the creditors and debtors that, according to the legal procedure, if the debtor can't liquidate when the liquidation period expires, the creditors will have the title of the collateral in impawn and mortgage of real estate and movable property. This concept is an academic terminology, there is no legal provision and till lack of theoretical research. But just the opposite is the wide application of the fluidity contract in the life of the people.After analysis and argumentation, this paper tries to reach the following conclusion on the questions of the legislative purpose of future legislation of the fluidity contract: the legislative purposes of the fluidity contract lie in the following aspects that the fluidity contract is the important basis and necessary policy to protect transaction parties'legal rights, also the institutional protection of safety of market transactions. The legislation prohibit of the fluidity contract should be broken through. As far as the practice of law is concerned, the actual legislation for the fluidity contract has many problems, and with the rapid development of our national economy and the on-going reform, more loopholes will be exposed, which requires us firstly to analyze and study these problems in civil theories and then put forward relevant legislative proposals. Meanwhile, in the general jurisprudence, the study and defining of legislative purpose constitute the prerequisite for scientific establishment and effective implementation of any law. Only the correct reasonable legislative purpose can provide suitable guidance for legislature and judicature, and point out a correct direction for the functioning of law. Following the line of thinking that through establishing legislative purpose to study legislative proposals, this paper analyzes and defines the legislative purpose of the fluidity contract, on which basis we put forward the relevant legislative proposals on China's fluidity contract policy.To be specific, the main body of this paper can be divided into four chapters. Chapter one introduces the germination of the fluidity contract. Back in Roman times, there is already the germination of the fluidity contract. To the rule of the late Justinianâ… , to prevent creditors use of the debtor's plight to gain an unfair advantage, the fluidity contract was prohibited; Germanic Law actually recognized the effect the fluidity contract. After the 12th Century, Church flourished, and prohibited the fluidity contract finally.Chapter Two synthesizes the cold reception history of the fluidity contract in France, Germany and Japan. It includes the partial prohibition of the fluidity contract in the Napoleonic Code, the complete prohibition of the fluidity contract in BGB, and the partial prohibition of the fluidity contract in Japan's civil Code. Firstly, the Napoleonic Code only prohibits the fluidity contract in impawn of movable property and real estate in Article 2078 and Article 2088, and has no requirements for the fluidity contract in mortgage. Nevertheless there are so many scholars criticize the partial prohibition of the fluidity contract. Secondly, the BGB takes rigorous provide for the fluidity contract. No matter what the situation is, the fluidity contract will be invalid. Thirdly, Japan's civil Code prohibits the fluidity contract in impawn, but the exist of the transferring guarantee and other related systems makes the prohibition the fluidity contract no sense.Chapter Three studies the history of the establish of the fluidity contract. The attitude of Italian Civil Code to the fluidity contract was the most enlightened. There are no direct regulations for the fluidity contract, and the fluidity contract is adjusted by the regulations of contract. American Uniform Commercial Code also established the system of the strict foreclosure; it is very close to the fluidity contract.The fluidity contract existed in the form of customary law in China for a long time until the Guaranty Law of the People's Republic of China guaranteed in 1995. The Guaranty Law completely prohibits of the fluidity contract. The legislation of Taiwan Province takes the same position. The Property Law of the People's Republic of China approved on March 16, 2007, it also prohibits the fluidity contract. The analysis of legislative proposals and the criticism of the prohibition of the fluidity contract constitute the major content of Chapter Three.