Study On Law Application Of Floating Charge In China

Floating Charge which our " Property Law " sets up, complies with the social economic development of our country's need, expands the space of financing for enterprise's business activity. It has great theory and realistic meanings. This text protects the implicit great risk to creditor's interests as the thread with the system of Floating Charge of our country, based on building the socialist harmonious society, research approach of adopting historical analysis, comparative analysis, real example to analyze etc., regard British Floating Charge system as the main reference system, give consideration to the relevant regulations of consulting countries such as U.S.A., Japan, etc., have comparatively deepened systematic research to the system of Floating Charge of our country. For having research results now, this text lays particular emphasis on the analysis on system of Floating Charge of our country, consider setting up the doing in the test amount factor of the floating charge synthetically, combine the objective reality of our country and legal tradition, put forward the concrete idea of improving the system of Floating Charge of our country. Besides foreword, this text is made up of chapter seven together。Chapter one is " subject of Floating Charge ". The British Floating Charge subject can only be a company, U.S.A. has not limited, Japan only limits to the Limited Company. The Floating Charge subject of our country is very extensive, the enterprise, self-employed entrepreneur, agricultural operator will do. This legislation chooses to reveal legislator's abundant respect to free competition and party autonomy, this is worthy to be definite. But this will bring very great risk to creditor. The main body qualification of floating charge is the most appropriate that our country only gives to " company " at the present stage.Chapter two is " subject matter of Floating Charge ". It can be the whole or part of company's property to escort the property in the setting up of Britain; It can be movable property or real estate too; U.S.A. is only limited to the movable property; Japan must be "total property" of the Limited Company. Our country adopts the limited movable property Floating Charge system, have and escort the property it as "existing and production equipment, raw materials, semi-manufactured goods, products mortgage that will have ", this range is too narrow. I think, adopt the limited Floating Charge and adopt the total property Floating Charge, should be chosen by oneself by the creditor, not by the regulation by force of the law.Chapter three is "registration announcement of Floating Charge ". Britain stipulates what the floating mortgage is set up must be registered in 21 days from day, the detailed regulation is unregistered, consequence of delaying registering and flaw and registering. U.S.A. stipulate, hand over, deposit a system of registration " financing report " too. Our country should set up floating mortgage the administrative department for industry and commerce to mortgagor's residence register. Adopt and register the face-off doctrine. Floating Charge have, have priority, repay into effect, can't oppose normal business activities pay reasonable cost and obtain mortgage property buy and receiving people already register. Question that should be considered at first how to coordinate the complicated registration administrative system of the present stage to design the resignation system of Floating Charge of our country. The department in charge of industry and commerce that should be registered by the company registers. In order to protect the business secret, only need to register the essential item while registering. To register time limit to be unnecessary to make the hard and fast rule.Chapter four is " effect of Floating Charge ". Various countries legislate to give the structure to the swindling Floating Charge correspondingly. British Company connect, administrate personnel on clear, complete a course the first 12 months with have related subject Floating Charge that establish and and have relation Floating Charge that subject establish within 24 months to have Result. Mortgage which the Hong Kong debtor established in three months before applied bankrupt, deemed that there are frauds, this priority does not produce the effect. Our country can draw lessons from the foreign legislative thought, make the denying regulation to the effect of the swindling Floating Charge.Chapter five is " priority of Floating Charge ". In Britain, the priority rule among Floating Charge and other interests depends on before or after other interests evolve from the crystallization of Floating Charge to a great extent. " real right law " make alone Floating Charge one regulation, adopt system explain the method, should be covered by the regulation of article 199 of " law of real right " as to the priority question. Make the Floating Charge priority rule of our country, except distinguish other interests to evolve from before the crystallization of Floating Charge or, still depend on other factors: Other kind, have restricted clause and other interests enjoy people in the know with this of interests.Chapter six is "crystallization of Floating Charge ". The important characteristic of the Floating Charge is the uncertainty of the mortgage property. But in order to make it melt then realize assuring fixedly, Floating Charge must draw support from certain intermediary and bridge, this intermediary and bridge are crystallization. The fixed crystallization origin of an incident of " law of real right " is as follows, the debt is fulfilled one expires, creditor's rights have not been realized; When the debt is fulfilled, the mortgagor is declare bankruptcy or is cancelled; Party's appointed situation takes place; The other situations that influence creditor's rights to realize seriously happen. Its defect lies in being unrestricted automatic crystallization. Should combine the national conditions of our country and set up the crystallization origin of an incident, stipulate that can't form crystalline origin of an incident, limit automatic crystallization, in order to prevent creditor managing and giving intervening normally inappropriately to the mortgagor.Chapter seven is "Receiver System of Floating Charge". When the floating mortgagee exercises the Mortgages, Britain takes the method of selecting the Receiver, take over the mortgage property, help creditors to realize the hypothec. There are two kinds of Britain Receiver appointment ways: Appointed with the court or Appointed out the court. Receiver hold by accountant or lawyer that license generally, divide into management receiver and administration receiver. Receiver is a kind of special agent, the duty is interests of protecting the mortgagee and sells off the property for the interests of it. It depends on appointing the order of the court that the receiver right and duty. Our country can draw lessons from to Receiver system of Great Britain and America, is grasp mortgagor property most big mortgagee of share appoint and connect receiver, when it is unable to exercise this right normally that the mortgagee has the dispute or mortgagee to connect the appointment receiver, and then appoint by the court.