A Study Of Floating Charge

Along with the continuously economic development, enterprise margin's demand, breaking traditional principle of theories of real right, English law established floating charge. Floating charge in England has already been remaining for over 100 years. The enterprise can hypothecate all or part of its properties and has the right to dispose its property. This is the main characteristic in the floating charge. The value of charged property is changing with freely dealing before the crystallization. Now, it is adopted by many Common-law System countries and Civil-law System countries, such as Russia, Japan and so on. The floating charge system conforms to the developing tendency of the modern security interest, so it has been playing a significant role in the area of financing depending on its flexible and efficient systematic advantages.Along with our country's market economic development, demand for financing is experiencing an ever increasing process. Floating charge promotes the guarantee real right functions' new development, can promote gathering property's use value and exchange value's effect, benefits in the business enterprise's free development and matches the economy development's demand in nowadays society. In economic life floating charge is not lack of practice, suitable legal provision is quickly need. On march 16th this year, Property Law of the People's Republic of China was issued. In it, floating charge is established, which is satisfying the request of the margin of modern industry and business, satisfying the need of enterprise's margin.The guarantor is entitled to possess, use and dispose the securities until the crystallization of floating charge, so that the floating charge not only guarantees debt, but also enable the guarantor to continue its operation. So it is beneficial to the guarantor. Perhaps it is a little harmful to the guarantee, because the value of charged property is maybe low until the crystallization for the guarantor can deal with the charged property. Using the study methods of historical analysis, philosophic analysis and analysis, the author discusses how to protect the guarantee's interests on the base of playing a full role about charged property.The thesis consists of four parts except for preface and conclusion.The first part is the corner stone of this thesis, which introduces fundamental theories of floating charge institution, including basic concepts, characteristics, as well as history and nature of floating charge institution. From the seed of floating charge in Roman Law, to the formation and development of floating charge in England Law, to the inheritance of floating charge in American Law, to the creation of floating charge in Continental Law, the author gives a clear description to benefit to our floating charge system's perfect.The second part analyzes law value's conflict and balance in floating charge. Law value's conflict come from different fields and bodes' different demands. Floating charge system constitutes the challenge to order value because of pursuing efficiency value. The key of solving value conflict is still to consist value standard. In details, it is guarantor's free right will be restricted in some degree under the order value. Guarantee can take some measure to make his right stronger. The rationality of floating charge is theoretically nature of floating charge institution. The rationality of floating charge is theoretically analyzed and its advantages and disadvantages are summarized in the second part. In it, the author compares floating charge and mortgage of a property group.In the third part, the author researches into each stage of the operation of floating charge, the subject who can form floating charge, the way to form floating charge, the registration of floating charge, and the operation of floating charge in England and American, especially about the crystallization affairs, receiver, priority and the right and the obligation of litigant. It means using other countries' legislations and practices for reference. And this part will give a good basement to advice mentioned in next part.In the last part, the author emphasizes the value of floating charge in modern Chinese economy, and provides constructive suggestions to perfect a floating charge institution suited to our own legal and social reality after analyzing the current situation and existing obstacles. Since Property Law of the People's Republic of China was issued recently, the researchers who are making a systematic study about it are short. The author gives some advice on subject, scope of property, the right and obligation of litigant and so on after a systematic and careful study.The author tries to probe into a new type of security—floating charge institution, and to prove the argument of this thesis as follows: floating charge should be perfected into current legislation system, because it improves debtor's capability to ask for loans and return the money. The author also gives some advice: floating charge should be regarded as a special charge and be established in a form of section in Property Law of the People's Republic of China; the subject of floating charge should be limited; the right and obligation of litigant should be made clear ; property charged should be enlarged. Thus it can facilitate the financial transaction, and answer the need for fund in China's modernization drive.