Consideration About Whether To Set Up A Guarantee System Of Law In China

Guarantee system Is in German and Japanese cases developed a kind of guarantee system of our country current law has not stipulated this system, but in real life in our country have appear this kind of case, which lead to whether you need to set up a guarantee system in our country.Guarantee system is the guarantee refers to the debtor or a third party to guarantee the debt of the debtor, the transfer of property rights of guarantee the subject matter to hypothec person, and make the hypothec person within no more than the purpose of the guarantee, guarantee the subject matter of property rights, after the liquidation, the subject matter should be returned to the debtor or a third person, debt nonperformance, hypothec person may on the subject matter of the atypical guarantee. While comparing with the mortgage, pledge, respectively, between them in the structure of the law and method above fundamental difference; But if the mortgage, the pledge as a whole and its comparison, they is no difference in terms of the public, and their actual effect is the same, is guarantees the subject matter of the disciplinary power to guarantee the realization of creditor’s rights. So mortgage can be instead of transferring guarantee, that have pledged to alternative type of transfer guarantee, mortgage, pledge can replace guarantee. Traditional method of publication of the chattel possession can’t record ownership and principle, at the same time and the real estate registration method can record principle and ownership at the same time So for personal property and personal property mortgage, guarantee publication of the chattel pledge also face problems, the author thinks that the appropriate after considering the characteristics of chattel on chattel real rights for security take written against the application for registration of the establishment of the establishment of socialism.For guarantee and mortgage, the pledge of the same problems of liquid, the author thinks that our country after the provisions of the corresponding relief system such as debt and the value of the third person right of dissent and specific exercise program can allow flow in the legal guarantee.In Germany, because of, strictly follow the doctrine of numerous law prohibits set to chattel mortgage without transfer of possession of the public, thus on the doctrine and jurisprudence development transfer and guarantee system, as an alternative to play a role in the practical life of chattel mortgage. In Japan, while take the real right legal detente, allow the movables mortgages, but the scope is too narrow, so as to guarantee still as the main substitute of chattel mortgage guarantee means in real life. Underlying all alienable guarantee has certain value of personal property, real estate, property rights and the right that is forming, the guarantor and the creditor can agreement transfer possession, collateral, also can agree not to transfer possession, collateral, it is because of these characteristics to guarantee system has developed as the center of the property guarantee system in Japan. Taiwan region in China, due to the comprehensive developed specially by the American law "personal property security law", the chattel mortgage system to develop in an all-round way, guarantee system has been abandoned in the almost. Set in our country, the current law allows for personal property mortgage, and provides a wide range of target range can be set to the mortgage, so different in Germany and Japan to guarantee system in China’s urgent needs. By Germany, Japan and Chinese Taiwan area of guarantee system of personality development history as well as regulations and implementation status quo of the research and analysis: Guarantee system in the above countries and regions, is not necessarily exist, but the product of the specific historical development. On the chattel mortgage, the more similar in Taiwan, and Taiwan region is precisely the development history of the guarantee system of the chattel developed countries and regions in the world there’s no need for the guarantee. About whether to need to guarantee system in our country legislation there are two kinds of representative, the author in favor of not only need to guarantee the legislation in our country needs to further perfect the existing mortgage, pledge system in China, and the all the guarantee and mortgage, pledge the development history of comparison as well as to the scope of guarantee system, and regulations and implementation based on the analysis of the status quo of the enclosed reason, and put forward Suggestions for the perfection of mortgage, the pledge. thus to answer the dispute focus of this article is whether to need to set up a guarantee system in our country.Reanalysis of the case, first analyzed the payment of the validity of the agreement, is discussed in this paper, the topic of the premise of problems involved, and then go back to the case of disputes on both sides in the terms of the guarantee of payment agreement in the contract as the guarantee, the last on the analysis of a, the second is put forward after the referee’s handling of the case within the existing legal framework, invalid guarantee for violating the doctrine of numerous, liquid terms because of the our country present law prohibits the invalid, creditors can’t enjoy the contract creditor’s rights, the conclusion is that creditors can’t get any protection. But after I allowed to flow and the terms of the recommendation, creditors have a claim of the contract of creditor’s rights. At the same time give the debtor value right to dissent, so got to protect the interests of both parties.