On Alienation Guaranty

Alienation guaranty, originating from Fiducia of Roman Law, is a non-typical guaranty method by ownership of guaranty. Alienation guaranty is extensively applied to the guaranty practice, especially guaranty of movables in western countries. During the examination of Real Right Law of China, the academic field discuss broadly and deeply the question whether and how to prescribe Alienation guaranty in Real Right Law. In the academic field, some disputes exist about the legal nature, enaction, legal force and the way of public notice, and especially the confliction between alienation guaranty and the principle of statutory real right and the rule of prohibition of pledge automatically transferred to the creditor when the debtor's of no due performance. Furthermore, public registration of alienation guaranty of movables lacks maneuverability, which is a main obstacle to the legislation of alienation guaranty. The dissertation tries hard to conciliate the conflict between guaranty alienation and China's legal system so as to choose one feasible legislation mode for movables guaranty and further puts forward a suggestion that the system of registration for publicity in alienation guaranty of movables be improved with progress of modern communication technology and improvement of communication conditions.The dissertation consists of four chapters as follows.Chapter One reviews the history and evolvement of alienation guaranty, and analyzes the practice of some newly-born forms of alienation guaranty such as mortgage, financial lease and import bill advance, so as to show alienation guaranty has a good practical basis in China. Further, the author points out that the guaranty methods mentioned above will go against the interest protection of clients or a third party without related solid legislation.Chapter Two goes on with a systematic analysis of legal nature, enaction, force, and public notice of alienation guaranty, coming to a conclusion that alienation guaranty is a type of hypothec of expected benefit and suggests that the way of public notice for alienation guaranty be valid only in written form and after registration to defend against the claims of a third party.Chapter Three fully concentrates on the two heatedly disputed topics: 1) the conflict between alienation guaranty and the principle of statutory real right; 2) the rule of prohibition of pledge automatically transferred to the creditor when the debtor's of no due performance. The corresponding conclusions derived from the analysis are the following: firstly, alienation guaranty is consistent with the essence of the principle of statutory real right and should be adopted in Real Right Law; secondly, alienation guaranty should be allowed to go against the rule of prohibition of pledge automatically being transferred for the sake of better embodiment of the doctrine of autonomy of will in private law. The dissertation dissects its spirit essence, removes the perplexity in theory and reinforces the theoretical basis of alienation guaranty.Chapter Four comes up with several constructive suggestions as follows: firstly, it is vital to making a feasible choice of legislation mode for alienation guaranty; secondly, it is indispensable to establishing a nation-wide uniform electronic net for guaranty registration which is characteristic of safety, convenience and cheapness to facilitate public noticing, checking, altering and writing off, aiming to overcome the difficulty in registration for public notice of alienation guaranty as well as for other kinds of non-possession-transfer movables guaranty and to make better use of guaranty of movables.