A Study On Pledge Of General Creditor Right

The enactment of "The Property Law of the People's Republic of China"constructs a more complete system of China' s property law, but the pledge system of general creditor right recognized universally by national legislation has not been established in our country. In the legislative process of "The Property Law of the People' s Republic of China" , the academic Community has discussed whether the pledge system of general creditor right should be prescribed by legislation. Due to the relativity and bodiless feature of the pledge system of general creditor right, the conflict between and the value of security interest is questioned. As a result, "The Property Law of the People' s Republic of China" doesn' t regulate the system into its scope. But as a general property rights, the realizable quality, private right feature, the historical trend of value of security interest and the conflict and balance between the security value and benefits value gives a theoretical support to the pledge of general creditor right. Moreover, it is a frequent phenomenon in practice having general creditor right as the subject of pledge, which leads to the differences of opinion in trial of judiciary cases and the chaotic situation of legal application. It is necessary to regulate the pledge system of general creditor right in legislative. Germany, Japan and other countries and regions' legislation have detailed regulations on the establishment requirements and the ways of realization of pledge system of general creditor right, which are worthy reference for China's legislature.Through comparative analysis, points that the pledge system of general creditor right has a strong theoretical and practical value, the legislature should specially regulate the pledge of general creditor right. Based on the characteristics of general creditor right, a written contract is needed for the establishment of pledge of general creditor right. It is permitted to apply the provisions of transfer of creditor right, having the third debtor as the effect requirements. As for achievement, according to the performance order of main creditor right and the minor creditor right, distinguish between types of the subject of the pledge right, the different situation are mutually different in achieving ways.