| In the wave of economic globalization and rapid development under the background of market economy in our country, the guarantee system which our country set up to adapt to the needs of economic development, gradually weak copes with the ever-changing market, and cannot have a good response to the demand of the civil and commercial economic and trade, the protection of creditor’s rights as the main function of the system design also cannot assure full compliance with current system, the main body of the market demanding for financing is more and more big which is asking us to re-examine the meaning of the guarantee system in our country, the property law is formulated in this context. But the property law of real rights for securing the real rights for security function positioning is still constrained by this model: giving priority to in order to guarantee the realization of creditor’s rights, and then strengthening the financing function of real rights for security, without setting of protection and its financing function and pattern, which is a pity. And financial circles also makes their reaction: outside the scope of the typical real rights for security, to meet the financing needs of its growing, apply the atypical guarantees, such as repurchase period of buying and selling, such as guarantee, to some extent, this also increased the difficulty of the court for some cases in our country, caused by the referee have different standard, the outcome of each different. In these atypical guarantee, the guarantee is used more frequently a way to guarantee.Transferring guarantee, just as it’s named, by assigning property rights itself to creditors, makes it be transfer of property ownership, in order to guarantee the realization of creditors. Guarantee is not put forward by scholars, but through the use by civil and commercial activities in and jointly created by court precedent, such much dispute happens in practice, and lacking of related laws regulates it in our country, and the argument of transferring guarantee is fierce in the theory, unable to be union. In judicial practice, therefore, for the processing of such cases is very tricky, and the processing results are also different. From the creditor’s rights, property rights are all invalid to the creditor’s rights behavior effectively, the real right behavior is invalid, all to the creditor’s right, real right behavior effectively, to guarantee the judgment of the lack of a more unified standards, different connection to predictable results. Into culture guarantee or not dispute the property law legislation in China is already at the beginning of produce, with the property law after the leave and come to an end, but it did not fundamentally solve the problem of the validity of the guarantee; And different theories about legal guarantee structure, just to better balance the debtor and creditor, the interests of a third person between the three relationships, but can be not ignored due to the debate in the structure of our current legal system guarantee validity problem.The paper embarking from the guarantee of related cases in China, classifies different verdict, and then according to the related theory of guarantee as well as the current law in our country, analyses the cases and the applicable law research, at last put forward to guarantee effectiveness issues.This article embarks from the guarantee of related cases in China, the classifying different verdict, according to the related theory of guarantee as well as the current law in our country, analyze the cases and the applicable law research, put forward to guarantee effectiveness issues.The main structure of the paper is divided into four parts:The first part is introduction, mainly introduces the writing methods, the purpose, the structure of the thesis and its innovation and inadequate.The second part is the specific performance problems in judicial practice, the author collected in the first place of the eleven cases related to this article introduce part of the case facts and the court’s decision, and through a simplified processing; Then according to different cases the court’s decision and the basis of different reason, classifying the case, and the court which reason to guarantee effectiveness of decision making by a brief description and interpretation; Finally points out that the effective guarantee problems in these cases the concrete form of expression.The third part is the determination of the validity of the guarantee. According to the first part of the reason which is the basis of the court let and guarantee effectiveness, is divided into five parts:First this paper case, this paper discussed the legal relationship. Although guarantee and buy the receipt in terms of theory, it is easy to distinguish between the both, but in real life, civil and commercial relationship not only is complex and changeable, civil and commercial subject for different purposes to make a different to the same legal relationship. In terms of our country, civil and commercial subject often will be integrated with the main contract relationship and guarantee, only embodied in a kind of legal relation, namely the design of the contract and buy back the system often very similar, very easy to confuse. The author collected cases also appears the question, and our country law is not directly related to the two systems of law, therefore, to this specification, the difference is necessary. It will buy back and guarantee in the legal relationship, the subject matter of the reasons, the contract price and the purpose of the four differences were analyzed.Next let and guarantee and conspires for false intention relationship are analyzed and compared. Conspires to false intention of the parties, there is no conspiracy that the sense of purpose and the meaning of legal effect, just for some reason or motive: to play or fraud to a third person. And guarantee because it is to achieve the purpose of guarantee in the form of transfer rights, for too far outweigh its desire to achieve, therefore, in its beginning, often scholars dubbed conspires to hypocrisy. The author is to explain here, just get to the hypocrisy of intention, we concern is the authenticity of their intention; In guarantee, but we have the means and the suitability of the directly as the authenticity of the intention to treat, mistakes, to think is seeks for guarantee of hypocrisy.Again let relationship with the terms of guarantee and the liquid was analyzed. Points out that the guarantee type can be divided into liquid and clearing guarantee, although the parties reached a guarantee agreement agreed transfer of property rights, but if the creditors in the implementation owes a duty of liquidation to the guarantor, and guarantee power at this point, there is no produce outlawed liquid around to prevent dangerous, can’t guarantee with liquid is about money.Then let’s relationship with guarantee and the real right legal has carried on the analysis and comparison. Ease, the common law and from the doctrine of numerous method and problems in the construction of the guarantee further exploring and guarantee real right legal relationship. In on the real right legal ease, the author by investigating the process of property law is the real right legal clauses, and pointed out that in our country real right legal ease and at the beginning of the property law legislators runs counter to the legislative purpose; For the common law is law, common law and property rights of legal method, the author examines the reality of our country’s civil and commercial trial and the situation of the civil and commercial activity, guarantee system in our country is far from the height of the common law; Finally in the guarantee of the ownership structure and the principle of real right legal relations, pointed out that is just the existing guarantee system of ownership structure, ownership, possession of change and trust system, the reasonable use, not outside of the legal property rights to create new property rights, therefore, is not in violation of the principle of real right legal guarantee.Finally by referring to the relationship and the method of guarantee behavior, For the relationship between guarantee and hair loss behavior, the main problem focused on whether to circumvent the law prohibits the guarantee is determined by the possession to the establishment of pledge right, and liquid to the stipulations of the contract is prohibited. Which has a detailed discussion on in front, thus not repeat, let of pledge and guarantee and possession of reform is not pledge, guarantee his effect, the creditor’s rights than pledge right endowed with the rights of the pledge, therefore, it is not to circumvent the law forbidden to transfer possession of the pledge right of set is not.The third part is the thinking and summary, in the face of our country attitude held by the court let and guarantee for analysis and evaluation, puts forward some thinking on himself: invalid guarantee legal consequences of the contract the parties and is it necessary to admit that this guarantee system in China.The fourth part is thinking and summary, in the face of our country attitude held by the court let and guarantee for analysis and evaluation, puts forward some thinking on himself: invalid guarantee in the contract the parties as well as to guarantee the legal consequence of whether there is a need to some ideas in our country.On the former, the invalid guarantee to bring the influence of the contract the parties is huge, because according to China’s security law regulation, the loss caused by invalid guarantee to the creditors, according to the degree of fault of the parties to share. While at the time of legal guarantee behavior, the parties to a contract both sides have responsibility for guarantee invalid consequences, and creditors often have this major or all of the responsibility, because compared with set guarantee, have more incentive to guarantee rights to set the security.For the latter, whether the mortgage system in China can fill the void which is left by guarantee, because the other civil law countries, the purpose of the creation of guarantee system, mainly depends on the demands of the debtor to finance and the pursuit of value of the subject matter. But in the context of our country’s civil and commercial activities, the mortgage system in our country there are many parts to be improved, it is still not very good to solve the problem of the main body in civil and commercial demanding for financing and the pursuit of value of the subject matter.The paper Based on the analysis and study of cases, is to propose some ways to solve the problem of our country judicial for the cases of this type of different standards and the same case with different judgment, and benefits for the judge handling the cases in the future. |
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