On The Choice Of Contract System Of Current Guarantee In China

Traditional civil law theory holds that since the fluidity contract is usually signed at the disadvantage of the debtors, seriously jeopardizing the interests of the debtors, it is thus against the fair trade principle. For this reason, the fluidity contract is unrecognized by most countries. It is also strictly prohibited by our Security Law and Real Law. However, with the development of social economy and the consequent updating of the civil law theory, the ancient yet innovative fluidity contract is considered neither necessarily harmful to the interests of debtors, nor violating the fair trade principle or the real purpose of guaranteeing real right under certain conditions. Therefore, there exists necessity to reexamine the significance of its existence as well as its legislation mode, so that we can absorb the essence and discard the dross, to meet the need of social and economic development from the actual situation.Based on the above issues, the present study mainly focuses on the problem of the trade-offs of the fluidity contract in our country. This essay is divided into four parts in addition to the introduction and conclusion. The first part is a systematic summary of the general theories relating to the fluidity contract, which makes a clear classification with regard to the identifications and the origins of this contract; the second part studies the classic lawmaking mode of the fluidity contract in foreign countries, where a contrast analysis approach is adopted; the third part first analyzes the regulations on the fluidity contract in our country, then moves to the discussion of the merits and demerits of the current system; the last part discusses the validity of the fluidity contract as a guarantee type, and probes into how to adopt its good points and avoid its weaknesses, that is, how to acknowledge the part that works and at the same time confine the part that harms.