Pawn Legal Attributes And Rules For Discussion

Pawnbroking, revived under the conditions of Socialism Market Economy, has been endowed with new contents, which mainly include that its business scope has been expanded, the pawnage forms has been extended, involving not only tangible assets and movable property, but also property right and real estate. The new contents result in severe challenges for practices of traditional theory of Civil Law, and judicial practices. Pawn, one of social economic phenomena, possesses special social feature and distinctive legal individuality. Consequently it is necessary to redefine and research the pawn issues.In the first instance, this paper gives a brief introduction of the development situation of pawnbroking in China, Asia, Europe and America. According to Chinese customary usage and legal practices in recent years, Pawn has been defined definitely. Dian Dang, which means Pawn in English, is two different characters with different meanings. Dian Dang demonstrated in this paper only means Dang, which is equals to Pawn, not includes the contents of pawnage of land. The paper makes analysis of legal attribute and character of pawn relationship, combining with traditional theories of Civil Law, on the basis of the practices of pawnbroking in China. The analysis includes: firstly, the basic character of pawn relationship is determined as real right instead of creditor's right according to the comparison of these two rights. Secondly, the usual viewpoint that pawn belongs to business security right is negated. It is curtail of the contents of pawn to consider it as a business security right. There are various differences between pawn and security right. The aim of the pawner and the pawnee is not to found security right, but establish one kind of legal relationships, which possesses security character and is totally different from security right. As a result, the paper concludes that pawn is one kind of special real rights. The corresponding laws should define it as a special form of real right. For further demonstration, the paper makes a comprehensive, deep comparison between pawn and other similar legal relationships, such as impawn, mortgage, transaction attached repurchasing clauses, alienating sponsion, especially pawnage of land. Through the comparison, which is from the view of homology and combined with corresponding legislative and academic viewpoints, the definition of pawn as a special real right is thoroughly demonstrated.After the concepts and property of pawn has been defined clearly, the paper will focuses on three legal issues existing in ordinary commercial activities, combining with disputes of pawn during judgment practices.The first issue relates to the proprietorship of the desd pawnage, which is not redeemed by the pawner after the expiration of pawn term. The rules of dead pawnage are essential in corresponding regulations and are constituted differently in various countries and regions. In the administrative regulations of China, the counterpart is constituted as conditional transfer of ownership. But the rules of dead pawnage and current related laws conflicted. The paper concludes that the dead pawnage rule is one of the characters in the pawnbroking, so it is imperative to keep the rules in current law system. Furthermore, special laws should be constituted to regulate related rules and relationships. If so, existing disputes will be settled, otherwise, the Rule will also be compatible with the Legal Principle of Real Right Law. Moreover, the paper also proposes constructive ideas about the legislation of dead pawnage rule by quoting the pawn laws from other foreign countries.The second issue is the pawn of managing rights. Whether managing rights can be the object of the pawn is related to the scope of the pawn. Excluding the pawn of the real estate, the objectives of pawn and security rights have some degree of identity. Through the research and analysis of the concerning theories of impawn of rights and the characteristics of managing rights, the thesis believes that the negotiable property rights beyond the title not only can be the object of the impawn, but also can be the object of pawn. The thesis explore the modes of the enactment and the implement of the pawn of managing rights.The third issue is how to handle the pawn involving reif. The law of China doesn't state that issue clearly. Instead, it transfer the puzzle to the specific tipstaffs. While in practice, seizure without any compensation is uniformly adopted and unfair to pawnbroker. Through reviewing the foreign and domestic methods of ancient and modern times, referring to the civil theories of the acquirement of the title of the reif, the thesis holds the viewpoint that the subjective mentation should be defined into goodwill and malevolence. Reifs accepted by malevolent broker should be absolutely returned to the owner of the lost property. When the reif is accepted by bona fide brokers, the fault of the owner of the lost property should be considered to determine the bearing of the loss. When we distinguish goodwill from malevolence, strict obligations of notice and cautiousness should be attached to the brokers and their staff. Through the method mentioned above, we can find a solution to balance the interest of the brokers and the owners of the lost property.The most characteristic method of research used in this paper is the method of comparison. Through the comparison of different legal relationships, modern and ancient legal systems as well as oversea and domestic legislation, the viewpoints of the thesis are demonstrated more convincingly. With a view to solve the issues in practice by using theories, the thesis combines theories and practices, avoiding purely focusing on the research of theories.