On Warranty Of Alienation

Warranty of Alienation has enjoyed a popularity in warranty practice nowadays because it meets market economy's need of financing for one hand, and complements the functional deficiency of non-standard warranty on the other. Its definition is, in order to secure the creditor's right, the debtor or a third party transfers the right of the object to the creditor. When the debt is paid off, the right of the object is given back to the debtor or the third party; if the debt isn't paid off at the appointed time, the creditor has the preemption of the object's appraisal at the current rate.Although Warranty of Alienation bears conspicuous advantages, its disadvantages are no less obvious, and sometimes these advantages and disadvantages intertwine with each other. The structure of Warranty of Alienation is quite unique, standing somewhere between that of the property right and that of the creditor's right yet belonging to neither of them, and its nature is hard to be defined. The form and the nature of Warranty of Alienation are separated, and efforts to combine them together are almost impossible. All in all, there is quite a large space for arguments on Warranty of Alienation. Despite of years of enthusiastic research on this issue, related theoretical achievements are far from meeting the demand of perfecting institutional construction. Moreover, after it proved impossible for Warranty of Alienation to be included by Property Right Law of China, the belonging of Warranty of Alienation arises as a new problem calling for an urgent solution and further study, which is the motivation for me to write the thesis.The paper consists of five parts. The first part is the basis of the following parts, which introduces the definition, institutional origin, features, social function and the representation in practice of Warranty of Alienation. Part two is a discussion of the nature of Warranty of Alienation. It gives a detailed comb of the composition of the right of ownership and theories on the composition of the right for security respectively. Based on the comparison of the advantages and disadvantages among various theories and my own interpretation, I make my own opinion clear: the composition of the right for security conforms more to the reality of and represents the trend of warranty of alienation. However, the prevailing theory of the right for security in Japan, which defines the nature of Warranty of Alienation respectively according to different conditions, needs further improvements. Since the aim is to establish independent guarantee institution, the nature should be universally defined.The third part first introduces the queries from which Warranty of Alienation has suffered, then it goes on to discuss related efforts to quiet down these queries. Finally, on the prerequisite of pointing out the deficiencies of Warranty of Alienation, it puts much weight to the creation of the public summons that make up for the deficiencies and the design of the computation responsibility and proposes my own opinions on methods of public summons. As is said before, Warranty of Alienation is a complex institution with the advantages and deficiencies blended, under the condition that with the compensation of undesired deficiencies go the advantages, it is hard to make decision. The paper calls for the necessity of computation responsibility, taking institutional permanent stability and safety significance into consideration.The fourth part is the outlook for the ultimate destination of the institution. Beginning from the introduction of the mortgage in the field of commercial housing installment payment, the purpose is to demonstrate the inappropriateness of the mortgage being regulated by Warranty of Alienation and advocates that it is more proper to set up independent institution of mortgage. Then it goes on to analyze the reasons that the Warranty of Alienation is not acknowledged by the statute of Property Right. The intention is to raise the awareness of the institution. Then it gives some suggestions on the institution arrangement and introduces the reasons as well. The fifth part is the conclusion, including my hope and comprehension. This is the abstract of the paper. I hope it can exert some effect on the improvement of the Warranty of Alienation and strengthen its function.