Research On The Effectiveness Of The Concurrence Of The Security Interest Of Movable Property Issue

The system of guaranty right of movable property gradually developed from the Roman law guarantee system, and no matter in terms of preservation of creditor’s rights, or in promoting financing ways, it plays an important role in modern social economy. However, legal lag would influence its function,which requires us to perfect legislation to meet the needs of social development. The author summarizes the legislation of the guaranty right of mova ble property in our country, put forward the following three questions: The missing responsibility transfer qualitative; The effectiveness of the mortgage and pledge competition rules of the single; When concurrence of hypothec and lien and the absolute priority of a lien against the fairness.Respect to the recognition of liability transfer quality system In the legislation of guaranty right of movable property,the author has different views:From the legislative point of view, Japan and the Taiwan are a in China clearly regulate it in law,in other words, if the PRC Guaranty Law establish the liability transfer quality system,it would not be a precedent.Secondly, in theory, Jhering’s thought of "socialization of ownership" in protecting the real right i s making a new, comprehensive requirements of the protection of the real absolute right of owner, but it still can’t ignore the value of things. Therefore, in order to achieve the purpose of the " make the most of things ", it can impose ownership restrictions to some extent. Malicious appended in the property law of remedy is to compensate the owner for this kind of the embodiment of the theory applied to. Admit liability transfer quality is in accord with the theory of real right.The single "registered in preference to pledge, mortgage payments" in legislation is not fully covering all the differences between the concurrence of chattel mortgage and pledge. The system of guaranty right of movable property in China’s legislation regulates register as the publicity way; Pledge right go public via the possession of the property, despite the publicity way is different,but the effect is no different. At the same time, the confrontation effect under the principle of publicity way is effective only backward. So respect to the "registration prior to the right of mortgage payments", if they do not distinguish it among specific types, this legislation is fit for juridical logic.Questions about the effectiveness of the concurrence of hypothec and lien. First of all, Uniform Commercial Code regulates the effectiveness of the concurrence of lien and the other security interest in chapter nine. It specified strict rules on the priority, that is to say, “under the condition of providing services or raw materials with goods with security interest in normal business.”. Besides, there’s regulations about the other situations, except that it is statute law and make other provisions, which distinguishes from the general provisions in China’s legislation..What’s more, in theory,the lien developing from exception do li in Roman law is for the purpose of safeguarding the interests of one party fulfilling obligations in contract and achieve the principle of fairness. That is to say, to regulate the lien in subsequent legislation is to continue achieving the purpose of fairness. The so-called protection of the interests of the weak comes from the situations of narrowing the applying scope of lien in some countries and legislations. And besides with the extension of th e the applying scope of lien, Lien Act is not only apply for the situations of processing,forwarders processing and maintenance.If always maintains the priority of lien, it would go against the principle of fairness. What’s more, lien as a kind of statutory security interest, only on the causes of the differences from the other way of security,it could not be the reason for priority. On the basis of the above reasons, the author believes that lien ‘s absolute priority should be eliminated.