The Legal Matters Research Of Charging Rights Pledge Loan

Pledge on charging right has been becoming a hot topic which is a universal concern to the banking industry with the social economic development and the prosperous securitization of right, but at present related legislation on ledge on charging right in our country is far from being established, with some stipulations appearing in some judicial interpretations, departmental rules and regulations, and regional laws, which are inadequate and have low validity level. At the same time, the loan of pledge on charging right has encountered many new problems. Some existing stipulations are unregulated and non-unified in their concrete operations, thus the risk controllability is bad. This kind of situation has troubled banks in handling loan of pledge on charging right, and also hindered the development of financial innovations to a certain degree. There are no papers and monographs systematically exploring the legal matters regarding loan of pledge on charging right both at home and abroad, the legislation and theoretical research obviously lag behind the urgent need of domestic banking development.In terms of the source, charging rights can be divided into charging rights directly authorized by laws and decrees and charging rights licensed by administrative permission. The charging rights directly authorized by laws and decrees can be further divided into charging right for administration and charging right for lawsuit. This research shows that the charging right for administration and charging right for lawsuit fee are pure administrative power; because the charging rights granted by administrative permission involves social public infrastructure and service, so it must be licensed by administration, thus featuring obvious public welfare nature, strong administrative intervention, and significant attributes of executive power.Regarding the feasibility of pledge loan of administrative charging rights, lawsuit charging right, and charging rights licensed by administrative permission, this research put forward that the administrative charging rights and lawsuit charging right cannot be warranted by pledge. Although the charging rights licensed by administrative permission cannot get rid of administration and must be licensed by administrative organs, but this does not affect its private power attributes. It conforms to the rights pledge conditions and can be warranted by pledge. Moreover, the charging rights licensed by administrative permission cannot be covered by other rights warranty forms, thus different from real estate usufruct, creditor's rights, accounts receivable, and account pledge. The charging rights licensed by administrative permission is an independent new form of rights, and should be separately listed as a right in parallel to intellectual property rights, stockholder's equity rights, and accounts receivable compound right, it cannot be subsidiary to real estate usufruct or creditor's rights, nor to accounts receivable. The charging rights licensed by administrative permission completely conform to the constitutional conditions for rights pledge and can manifest its warranty value.Various problems and huge potential risks arising from charging rights pledge are attributed to the unclear charging rights classification and confusion of its legal nature. Regarding the risk control of loan on charging rights pledge, the best legislative pattern is to separately legislate the institution of charging rights pledge. Because among each kind of charging rights, only the charging rights licensed by administrative permission completely conform to the constitutional conditions for rights pledge, while it also has an obvious public welfare flavor, the public power and civil rights are confused and mixed, so defects will exist if purely depending on public laws or purely depending on civil laws. Therefore, it is necessary and feasible for the country to make special legislation on the charging rights warranty system, and it is also advantageous in practice. Charging rights pledge should be open to public through registration, the registration organ should be one determined by real estate registration laws or should be the credit departments of People's Bank General Headquarters and its branches. The charging rights pledge should be registered as a separate rights, its setting up should adopt the essential ideology of registration. As a new form of warranty, charging rights pledge has certain particularities in the realization of pledge rights, which can be realized by three methods: 1, is to auction or sell off the charging rights, and to receive preferential compensation from the proceedings thereof; 2, the creditor entrusts agency to control and to exercise charging rights; 3, the creditor directly controls and exercises the charging rights.