Study Of Atypical Guarantee System

Security has been an important system of the civil law ever since ancient Roman law. With the rapid development of market economy after the World War II ,security system in various countries has taken place changes greatly, and become one of the briskest section of civil law. And also, the characteristics of security system have developed from traditional type of guaranty into modern type of financial media. In modern market economy life, in order to ease off market risks by tacking advantage of security effectively, creditor of trade and finance required more flexible and practical security out of typical security, thus the untypical security, such as assignment security, ownership reservation and floating mortgage came into being. Generally speaking, typical security refers to hypothec, right of pledge and right of lien stipulated by code of civil law, and the real right of security set by which through subject matter is limited. Different from typical, untypical security is cultivated by special law and theory of legal precedent outside the system of code of civil law, in which the security of assignment of right guarantees the right of obligation by transferring ownership or other rights of subject matter to holder of security claims, who governs the whole rights of subject matter .The narrow senseuntypical security is turnover-right security in essence which makes up the core of untypical security, and includes assignment security of narrow sense, ownership reservation and so on. This paper mainly discuses assignment security of narrow sense and ownership reservation. The Security Law enacted in 1995 has stipulated typical security, however the practice and theory of untypical security is still poor in China.As a kind of untypical security, assignment security developed by civil law countries such as Germany and Japan by means of adopting theory of fiducia in Roman law and absorbing treuhand factor in German law, came into being gradually after over a hundred years of practice of theory of legal precedent. Nowadays, assignment security has become one of the most popular security in practice in Germany , Japan and other countries because of its unmatchable merits.Ownership reservation originated from Roman law ,had not been used and ignored for a long time in the past. In the late 19th century, credit economy prospered together with the process of industry revolution, and installment payment sale become a prevalent way of transaction. As a sort of security in closer combination with installment payment sale, ownership reservation is considered one of the most active and ideal type of movable property security.As the best embody of untypical security, assignment security andownership reservation are the result of development of market and credit economy. After 20 years of market-oriented reform, assignment security and ownership reservation have made their first step in China, but what the market economy most demanded is the more regular and perfect untypical security, which is exactly what we lack. This paper inquires into evolution and concerned theory of assignment security and ownership reservation on the basis of legislation, legal precedent and theory in Germany, USA, British, Japan, France and Taiwan, and wish to do help to the establishment of assignment security and ownership reservation system of our country in the future.