Study On Transferring Guarantee's Object And Publicity Method

Transferring guarantee originated from Roma law, it guarantee the creditor's right by transferring the guaranty's right to the creditor, transferring guarantee is a kind of non-typical guarantee. It has been disappeared for a long time till the end of 19 century when Germany re-established it by the prejudication and theory. Because of the powerful guarantee ability, it has been established by Japan, Chinese Taiwan and other country or region which belongs to the continent legal system. There are two kinds of theories about the structure of transferring guarantee, one is the proprietorship theory, the other is hypothec theory, in the modern time, the hypothec theory is widely accepted by most of people. Because the object of transferring guarantee is universal, all of the property which could be transferred could be the object of transferring guarantee, include chattel, freehold, intellectual property rights, creditor's right and securities. And the chattel includes normal chattel and aggregate chattels; freehold includes real estate, the usufruct of land, the house which is in building and some special chattels which are saw to be freehold; intellectual property rights includes copy right, trademark right and patent right; creditor's right includes appointed independent creditor's right and appointed aggregate creditor's right; securities includes bills. Because transferring guarantee is a method of guaranty, it must be publicity for ensuring the safe of business's sake, but the objects of transferring guarantee are so widely that we can not find a uniform way to finish its publicity; it became a difficult problem which puzzled people all the while. In transferring guarantee, it should use different way to finish publicity according to the different guaranty objects: chattels should establish publicity by contract and register; freehold should establish publicity by register and fore-register; creditor's right should establish publicity by noticing the third debtor; intellectual property rights should establish publicity by register and fore-register; securities should establish publicity by transferring possession. Transferring guarantee is a kind of powerful guaranty, and could supply the gap of traditional guaranty; it should be established in China in order to promote the development of our country's economy.