Analysis On The Improvement Of Chinese Floating Charge System

Similar floating charge in China came from the property law181th,2007edition. But the practice effect does not achieve the legislativeintent. Besides that, the clause seems to be coarse and broad and thereis room for improvement. This article is intended to analyze the movableproperty floating mortgage system, floating charge applied to theinternational project financing, and to propose the writer’s own opinionon the perfection of floating charge, combined with foreign legislation.This article is divided into four parts except preamble and conclusion:Chapter one：Article181of the property law; chapter two: projectfinancing and its legal environments; chapter three: floating chargesystem and evaluation of some developed countries； chapter four：legislative proposal on floating charge in our country. The first andsecond chapter is the basic of the whole thesis and analyzes financingmode and current regulations to prove the necessity of improvement offloating charge system. The third chapter introduces some floating charge system in some other countries and the methodology of transplantation oflaw. In the last chapter, the writer puts forward her own proposals onthe legislative perfection of the floating charge based on the theanalysis of the ex-three chapters.Chapter one gives an introduction of clause181, and has two sections.The first section introduces the economic background, legislativeobjective, and academic disputes and solutions of legislation in ourcountry as we accept movable property floating mortgage system. The secondsection analyzes the clause181, elaborates its background, legislativeintent, viewpoints of scholar’s, accept the viewpoint of Pro Lianghuixinreservedly. Then, the writer proposes the point–although the clauseaforementioned accepts the movable property in the future and this is abreakthrough in our traditional security system, there exist biggerdifference in floating charge applied in the international project.Chapter two introduces the legal environment needed by projectfinancing and has two sections. The first section introduces the securitylaw environment in our society: one is the difficulty in small andmedium-sized enterprises’ financing, the other is project financing.However, the181th does not satisfy the first requirement and limit thesecond one. The second section introduces the variety of project financingin details and its Guarantee legal environment respectively. There areBOT, ABS, PPP, PFI, TOT and so on. Based on detailed analysis, the writerthinks the way of transferring the possession authority such as PPT, PFI,TOT benefits local enterprise. BOT and ABS think more of the ability ofconstruction and financing. And both of them is governed by theinternational accepted floating charge. In fact, lots of successful BOT,ABS in China are applied to foreign law and participate by foreigncontractors and bankers. It is vital to set up floating charge if we are intended to improve the international competition of our enterprises.Chapter three introduces legislative system about floating charge indeveloped countries, and has two sections. The first one introduces thefloating charge system in common law. As the birthplace of floating charge,its registration, crystallization, receiver and the solution of priorityconference is good legislative reference. United Form Commercial Code inAmerica has an independent chapter, which is Chapter9. This chapterprovides the guarantee, public creditability and created the concept ofthe unified creditor’s rights and benefits the scholar’s in our country. The second section introduces the floating charge transplanted by thecivil law. Japan formulated the Enterprise Security Law based on theEnglish floating charge in1958. And this law benefits the economic atthat time. However, the whole decree is conservative and limits thesubject and guaranty. Scotland, an island beside the Great Britain, whoseeconomic is influenced by the Great Britain, is a civil law country. In1972, Scotland formulated the Floating Charge and Receiver Law, whichspecified the subject, public credibility, implementation of guarantee,priority and effectiveness of tenancy after mortgage. All these are forreference to Chinese legislation.Chapter four proposes the recommendation on the improvement of clause181th and has two sections. The first section discusses the necessity andpossibility of the transplantation of floating charge. The second sectiongives suggestion in details, mainly including subject, mortgage,registration system, receiver, priority right.