A Research On The Establishment System For Pledge Of Rights

The system of pledge of rights originated from ancient Rome, which was an important content of the pledge system of ancient Roman law. Through creating the system of pledge of rights, Romans turned the rights into a kind of property which could be guaranteed in a creative way, which has enlarged the scope of objects of pledge of rights and also has broken the old concept holding that an object must have its body. And most of the civil laws of the continental law system countries have inherited the ancient Roman law.Due to that it was emphasizing farming and despising business, emphasizing punishment and despising the common people in ancient China, so the civil and commercial laws in ancient China were not developed, and what's worse, the debt and the guarantee of obligation reflecting and regulating commodity economy were much more undeveloped. China's guarantee scheme in a modern sense was established in the end of Qing Dynasty, and the Draft Civil Law of Great Qing made in 1911 and the Civil Code made by Beiyang Government in 1926 had both regulated real right for security, but both of them had not been promulgated and implemented. The Guarantee Law of The People's Republic of China implemented on Oct. 1 1995 symbolizes the beginning of establishing China's modern guarantee law and is a key landmark for China's guarantee law system. The Property Law of the People's Republic of China implemented on Oct. 1, 2007 has further standardized the system of pledge of rights and made clear that the pledge of rights is a kind of statutory real right for security.Based on reading documents and collating data, applying the comparative method to research, through comparing, analyzing and concluding, an in-depth discussion is made towards the establishment system of pledge of rights in the thesis. In the thesis, in combination with the current system of pledge of rights in China, the deficiencies existing in the system of pledge of rights in China are found out and consequently some suggestions are put forward. This thesis is divided into 6 parts.Part-1 is about the concept and nature of the pledge of rights. It mainly deals with the discussion on the concept and nature of the pledge of rights through comparing the theoretical views of experts and scholars both at home and abroad. It is not an easy thing to define the pledge of rights scientifically although it has already been an important system in civil laws of all countries, which is mainly due to that the cognitions towards it by scholars of different countries are not uniform. The author agrees with experts such as Wang Liming, etc. who hold that the pledge of rights is a kind of pledge established taking the property rights except for ownership (such as all sorts of obligatory right or other rights that can be assigned according to law) as its objects. The reason is that the major difference between the pledge of rights and the pledge of movables is that the former takes the right as object, and such kind of right shall be characterized by the following features: 1. It shall be the property right according to the private law; 2. It shall possess the assign ability; 3. It shall be the property right managed by the organization with document of title or some special organization. The right object theory has already been accepted by the scholars of China.Part-2 is an overview of the system of pledge of rights. In this part, the development history of the system of pledge of rights is revealed with the application of its origin. And this part is divided into two sections. In Section-1, the origin and development of the system of pledge of rights in some major countries of the world have been discussed, and then, we gain a much clearer knowledge about the origin and development of the system of pledge of rights abroad, meanwhile, the theory of pledge of rights and its legislative situation have been analyzed deeply. In Section-2, the development process of the system of pledge of rights in China has been explored.Part-3 is about the types of the object of pledge of rights. Proceeding from the extent of rights concerning the 7 types of statutory pledge of rights in Clause 223 of the Property Law mainly, the concepts of all kinds of pledge of rights are made clear. At the same time, the author has discussed and researched several other property rights suitable for being pledged, i.e. tele-services rights, stamp, insurance policy, tourist ticket, bus and ship ticket and the right for proceeds of real estate, etc. and has proposed his own opinions.In Part 4, the establishment of pledge of rights has been expounded mainly. From the four following major aspects, such as the general principle of establishment of pledge of rights, the pledge contract, form and content of pledge of rights and the entry-into-force conditions of establishment of pledge of rights, the general principle of establishment of pledge of rights and the defects of its legislation in China have been researched with great effort.In Part 5, several common establishments of pledge of rights are expounded. From the legal provisions for such several common establishments of pledge of rights, related regulations in Chinese law are carded, foreign advanced theory and the legislation experiences are borrowed, the omits and defects in the existing legal norm are pointed out, and meanwhile, some improvement suggestions are given.In Part 6, the comprehension and meditation on improving the legal system of establishments of pledge of rights are expounded mainly. In this part, the important meanings on encouraging the development of the system of pledge of rights are elaborated, and several aspects needing improvement are proposed explicitly, including 3 parts: 1. The system of pledge of rights needing to be perfected in legislation, though the existing system of pledge of rights dealing with a wide range, it has brought difficulties to the judicial practice due to it's unscientific and not coordinating. 2. The category and applicable scope of pledge of rights should be further improved. 3. The methods of establishment of pledge of rights should be further improved.