On The Legislative Orientation Of Atypical Guarantee In China

The system of security interests in China has been established primarily in the Real Right Law of P.R.C. Before that a series of laws on security were enacted, which start from the Civil Law to Security Law. However, security interests, as the most fast-moving area in Civil Law system, has been always ahead of the development of legislation, and also best embodied the contradictory between theory and practice. The Real Right Law of P.R.C has been promulgated for nearly eight years, with the rapid development of the market economy, the field of secured financing has already spawned a large number of different ways of non-typical security, which is different from typical security. The emergence of various financing secured has already beyond the existing security system in our country. In 2014, "the codification of the Civil Code" was proposed on Fourth Plenary Session of eighteen, if the work will be launched officially in the future, the system of existing Civil law will be make a major adjustments undoubtedly, including the security interest. Non-typical security, as one kind of form on security interests, was developed outside the Civil code, it is indeed difficult to obtain the status of security interest under the Numerus Clauses. How to coordinate typical security and non-typical security? How to soften the Civil Code, resolve the conflicts between theory and practice? How to deal with the contradiction between the Numerus Clauses and civil or commercial habits in practice? These questions have to take serious consideration in the course of compiling the Civil Code of China. On this subject, the civil law countries can indeed provide useful legislative experience to our country. Under this idea, I start to write this paper. Start to the concept of non-typical guaranty, I have analyzed the difference between typical security and non-typical security, and then listed specifically several types of non-typical security in the credit practice. On this basis, I have summarized the security interest legislation system in civil law countries and common law countries, by the contrast analysis, I found the existing problem of the security legislation system in our country. Finally, I discussed the coordination between non-typical security and the Civil Code by analyzing the trade-off problem of title finance. With full academic discussion, I hope some opinions in this paper will give some suggestions on the compiling Civil Code of China. The Real Right Law in our country adopted the legislative model under "the assuage of Numerus Clauses", this is supposed to keep on applying in the Civil Code, among this basis, using the experience of Germany, Japan and other civil countries for reference. To regulate non-typical guaranty in the form of civil special law or case law, so as to achieve the effect of softening the Civil Code.