The Study On The Exception Of Prohibition On The Fluidity

Undoubtedly, fluidity contract is prohibited in many countries and there is noexception in China. On the basis of Guaranty Law of the People’s Republic of China,subject to Article40and Article66, Property Law of the People’s Republic of Chinaalso stipulates that fluidity contract should be prohibited accordingly. However, withthe rapid development of the social economy, commercial trade, home and abroad,has become more and more active. Therefore, efficiency plays a more and moreimportant role in commercial trade nowadays. There is no doubt that, in such a societythat the economy is so developed and the demand for financing is so strong, and insuch background where the legal theory and system have been gradually improved,we have to rethink the traditional point of view to meet the right needs of the socialdevelopment. To promote financing and enhance economic benefit, we have to thinkof such a possibility that fluidity contract should not be prohibited under the certaincircumstances and conditions, which is worthy of study, both in theory and in reality.This thesis has four chapters in total. In Chapter One, this thesis concludes theconception of the fluidity contract in theory, on the basis of which this thesis rethinkssuch conception. Then, this thesis elaborates the history of such fluidity. In the light ofthe different legislation in different countries and regions, this thesis also makes acomparative study on such fluidity. In Chapter Two, this thesis analyzes the reasons for such prohibition in detail, based on the perspectives of the protection for thedebtor, fundamental principles in civil law and the protection for the other creditor. InChapter Three, this thesis analyzes the reasons for the construction of the exception offluidity, based on the perspectives of fundamental principles in civil law, autonomy ofwill, cost, financing channel as well as custom. In Chapter Four, this thesis tries tomake some practical proposals for the possible construction of the exception offluidity, distinguishing the civil fluidity and commercial fluidity thereof.