Study Of A Floating Charge System

Floating charge was derived from England and had developed for one hundred years. In floating charge, the mortgagor does not transfer the occupancy of mortgage things and is free to deal with the property within the certain scope. Floating charge devoted more to the economic development of England. From then on, Anglo-American common law countries of the British pioneering transplanted floating charge, Some civil law countries borrowed and absorbed the floating charge, making floating charge get a great deal of development. As an atypical security type, floating charge plays a more and more significant role in modern economic transaction, especially in satisfying the soaring financing demand. March 16, 2007, the People's Republic of the Tenth National People's Congress acted the fifth meeting and adopted the "People's Republic of China Property Law", and the law has been acted from October 1, 2007 on. This is an important legislative activity in the history of China, making that China's civil legislation cross a big step forward. Among them, "Property Law" of the 181st, 189th and 196th of which are the majority of scholars believe that the system is the floating charge, I think that this is several provisions about floating charge, but very incomplete. Although it is a major step of floating charge to the study of legislation, but I still say that China does not establish a complete system of floating charge. So I choose the floating charge as a research object, I will use the method of analysis to research the definitions, characteristics, operation of the floating charge. Through this analysis, I come to a conclusion that China should re-establish the floating charge. This paper includes three parts, namely foreword, text and conclusion, reading about 30,000 characters. The text is the main part, which include four parts.Part one, the introduction of the floating charge. This part starts with the concept of floating charge and introduces its source and meaning of words. Through analysis characteristics of floating charge general by numerous domestic scholars, the characteristics and definitions of floating charge are concluded. In the last, I compare floating charge with the related concepts such as set charge and retention of title to highlight the peculiarities of the floating charge.Part two, the introduction of the historical development of floating charge. A review to the history of floating charge is to grasp clearly the legal regime's origin and the essence, thus understood profoundly this system produces inevitability and the influence to economical legal system. Its system source might trace most early to the ancient times Rome law time, then introduce that this system in the common law system's production and the development condition, finally return to the civil law system and introduce the major country's related legal regime of civil law system. What is specially prominent was Japan, Japan formulates the enterprise security law which learned from Britain's floating charge, this is a successful model in the civil law system countries , therefore I will carry on the relatively detailed introduction to Japan's situation.Part three, the introduction of the whole running process of the floating charge. The whole operation of the floating charge has three processes, including the setting up of floating charge, dormancy and the realization, each process has its own special requirements of the system. Restrictions on the establishment of the main countries have different requirements, the author design the subject in China on the basis of different national regulations. In the floating charge's dormancy period, mortgages can freely dispose the property in the normal business activities; this is the most unique in floating charge. In the process of the realization of floating charge, firstly involve crystallisation, and secondly, involve the appointment of a receiver to achieve the secured claims. In this process, the subject of crystallisation, the appointment of a receiver and special order of priority are the other characteristics of floating charge. The author has carried on the elaboration emphatically to it, and proposed many own viewpoint in the elaboration.Part four, the consummation of floating charge in China. First, the author analysis some related provision in the 'property law'. Second, explain the significance aspect to our country. Last, consume floating charge of China on the base of all elaboration in the front. The author finally set up the main body of floating charge from the system localization, the subject, the creditor's rights scope, the way to setting up, the matter of crystallization, the realization and the priority question, and so on.This article wants to analysis the special mortgage system-floating charge and come to the conclusion: The floating charge conforms to the modem security system's new idea and the trend of development, can strengthen debtor's borrowing power and the credit capacity, it also reflect the value of the pursuit of efficiency, with the function of other forms that can not replace. Today our country's economy develops unceasingly, our country can construct the complete floating charge through the careful legislative design to best balance between the rights and obligations of the parties, making it maximum to strengthen the enterprise's security strength, thus to promote fund's allowing temporary credit, meeting the market economy needs finally.