The Construction Of The Relinquished Security System In China

The system of relinquished security as a transfer collateral ownership of non-modelguarantee,which originates from the Rome law and the Germanic law of the trust system.Trustsystem has been widely used in the civil law countries, such as Germany, Japan, and graduallyestablished through theory and case. With mark economy’s development, market demand forfinancing means are also increasingly diversified, Existing in the judicial practice in ourcountry with the sales contract as the representation, as the case of loan financing means suchas increasing, but because our country law does not have relevant provision, resulted in theprocess of judicial practice of chaos. So, in order to safeguard the legitimate rights andinterests of the debtor, the realization of judicial justice, should give the judicial organ toprovide a reasonable judge basis. In this article, therefore, the guarantee system on the basisof theoretical research, legislative guarantee for constructing problems put forward its ownviews.However, because of our country in the legislation does not require the systemof relinquished security, which makes the judicial practice of relinquished security lack oftheoretical foundation and the legal standard support. Therefore, this thesis makes a profoundstudy of whether our country should introduce the system of relinquished security.This thesis mainly through the research on the theory of relinquished security to furtherillustrate the superiority of relinquished security compared to the typical security, and then putforward the necessity of constructing the system of relinquished security in our country andthe construction of the system of legislative ideas.The part expounds research direction and innovation point, which in detail on theresearch situation of alienation guarantee in Anglo American law system, continental lawsystem and the continent area of our country, and then put forward our country shouldestablish the system of relinquished security’s point of view.The article is divided into five parts:The first part is the outline of the system of relinquished security. First of all, studies theorigin of relinquished security, namely make a detailed analysis of the origin of the Rome law and the ancient Germanic law relinquished security, and explain the historical background ofthe relinquished security. Secondly, elaborate the concept of relinquished security, so thatreaders can have a basic understanding. Thirdly, elaborate the characteristics of therelinquished security, shows its unique. Finally, through the analysis of the relinquishedsecurity and related legal concepts, can not only deepen our understanding of the importanceof the system of relinquished security, but also can fully appreciate the system of relinquishedsecurity system in the guarantee system.The second part investigated the system of relinquished security, and analyze theAnglo-American legal system of the system of relinquished security in British, America andanalyzed the Continental law system of relinquished security in Germany, Japan, Taiwan areaChinese. The method carry on the summary to the advantages of foreign law on the system ofalienation guarantee the use of comparative analysis, and make a reference from liquidationobligations,The method carry on the summary to the advantages of foreign law on the system ofrelinquished security the use of comparative analysis, and make a reference from theexistence form of relinquished security and relinquished security’s rule and obligations ofliquidation, which is helpful for the research on the construction of the system of relinquishedsecurity.The third part expounds the existence and security nature of the dispute and thetheoretical analysis. The three main views in academic field of relinquished securityproperties are described in detail, namely the ownership law constitute, guarantee right legalconstitution and compromised the legal constitution says, and presents the advantages anddisadvantages of the various viewpoints, and the writer’s personal viewpoint on the nature ofalienation guarantee. Researching on the relinquished security is great research value throughthe whole paper from beginning to end.The fourth part analyses the necessity of the construction of relinquished security inchina. First of all, by the method of empirical analysis carry on the analysis to the two realcases in judicial practice, and analyze the court judgment results, from the two aspects ofpositive and negative shows no legal provisions in the results of different treatment conditions, fully illustrate the relinquished security in our judicial practice in the state of chaos, andfurther expounds the relinquished security in the rationality and the urgency of theconstruction.Secondly, from the perspective of relinquished security its own uniqueadvantages, demonstrates the necessity of relinquished security in China.The fifth part put forward the legislative idea of construction of the system ofrelinquished security. Firstly, put forward the mainstream viewpoint of legislation mode of therelinquished security, the author also put forward his own views. Secondly, the system ofrelinquished security’s setting, mainly carry on from the relinquished security contract form,the relinquished security litigants and the subject matter of the units of the three aspects.Thirdly, analysis of the relinquished security publicity never chattel mortgage, chattelmortgage and transferring guarantee three right angle, and the related rule of The People’sRepublic of China Reality of laws in the reference. Fourth, the effectiveness of relinquishedsecurity mainly study from the two aspects of internal and external validity and effectiveness,in order to the author advocates expectations right theory as the research foundation at thesame time, also with reference to the relevant provisions of The People’s Republic of ChinaReality of laws. Finally, the realization of relinquished security is mainly the realization ofguarantee right way from creditors, namely disposition liquidation and belonging ofliquidation two aspects are investigated. The legislative idea of relinquished security is mainlyto set up the theory basis in the transferring guarantee law, the author’s point of view is alsoaround the right of expectation to set.