Research On The Practice Of Transfer Guarantee In China

The transferring guarantee originated in Rome trust law theory, but because of its inherent defects gradually revealed, replaced by the system of pledge, mortgage and other guarantee way. The transferring guarantee as the beginning of modern real right for security system, because of its strong social function gradually revealed, began in the judicial practice of Renaissance later. In particular, is widely used in Germany as the representative of the countries and regions, the theoretical research and practical application of transferring guarantee in Japan has tended to improve. In our country, In the "property law" during consideration of the draft, around the transferring guarantee should be "into the law", choose which way "into the law", the academic circles of civil law in our country launched a fierce debate, so far no results. But, the transferring guarantee has various problems in the reality of our country in the practice, we need to solve one by one. Based on the analysis of two typical cases on transferring guarantee, based on the research of the problem of transferring guarantee, Mainly put forward in the framework of regulation as the angle of view to solve the practical problems of our guarantee scheme. The article is divided into four parts:The first part is to put forward our country guarantee problem. Mainly from the three perspective, the financing, the system of civil law, the compare of system, to put forward the practical problems in our country the transferring guarantee. At last, the purpose and significance of this thesis is briefly summarized.The second part is the case analysis of equity transfer guarantee contract dispute. Based on the case and the trial results are introduced, combined with the research on the legal nature of guarantee, the effectiveness of the equity transfer contract of guarantee, effect of transferring guarantee, Focus on the analysis and discussion of the issues in the case.The third part is the case analysis of commercial housing sales contracts disputes. Based on the case and the trial results are introduced, combined with the research on the transferring guarantee of real intention, define the nature of a contract for the sale of commercial housing in the case, enactment of transferring guarantee, focus on the analysis and discussion of the focus of a series of problems derived from the case.The forth part is the solution of practical problems from the perspective of the framework of regulation. Mainly from three main realistic foundation, the market environment, legal theory, practice forms, to demonstrate the feasibility of in the framework of regulation as the angle of view to solve the practical problems of our guarantee scheme. Through the theory discussion, the author put forward the views of the legislative mode of transferring guarantee system in our country. From the concept, object, enactment, publicity, effect of transferring guarantee, put forward how in the framework of regulation as the angle of view to completely solve the practical problems of our guarantee scheme.