A Study On The Construction Of The Transferring Guarantee System In China

Since the 1990 s when China began the legislation of property law, whether the transferring guarantee system should be incorporated into law has been controversial. Finally the property code did not include in the transferring guarantee system.On August 6, 2015,The supreme people’s court issued Provisions of the Supreme People’s Court on Several Issues concerning the Application of Law in the Trial of Private Lending Cases”.(hereinafter referred to as the "private lending Provisions"). The article 24 is claimed to be the provisions about the transferring guarantee. So after seven years of silence, the transferring guarantee became a focus of all walks of life once again.Since the transferring guarantee has been included in the judicial interpretation, is it necessary to the provisions of the civil code in the future? If the answer is yes, how can we design the future legislation? The author was based on this assumption and combined with the thinking about the article 24 and launched the research of this problem —— establishing the transferring guarantee system in our country.This paper starts with the historical development of guarantee, to explore the initial causes, background and applications of this system, giving us a general understanding of the original guarantee system. After reading its history, we find that the transferring guarantee is actually a very old system, even earlier than Mortgage, pledge system we often hear of. We can find traces of the guarantee in both the ancient Roman law and the ancient Germanic law which have extensive influence all over the world, so the system is very universal. The guarantee’s development in Germany, Japan and Taiwan of China tells us that the world’s major countries and regions(especially the civil law countries and regions) has been removing obstacles for the application of the guarantee and providing support for its development through legal cases, theories. It also illustrates the development trend of the guarantee is legalization and institutionalization in the world.After grasping the direction of the development of the guarantee, the author started the theoretical analysis. On the definition of guarantee, the author claimed that the object is unrestricted, implementation of the right to guarantee can be liquidated. On the legal components, As said security right completely ignore the appearance form, the author argues that adopted German expectant right said which is on the basis of the ownership composition said, so that we can better balance the interests between creditors and debtors.After clearing theory problems, it is necessary to solve the problem of setting up the guarantee system. By comparison, the author found that the transferring guarantee system has prominent advantages than the traditional guarantee ways in the scope of guarantee mark, implementation approach, transaction costs and transaction security, etc. If there is no real demand of a system, it will not be able to say the legislation is necessary. Through analyzing the legal structure of the trust receipt and securities margin trading, the author found that they are typical application of guarantee and the transferring guarantee system has plenty of application space in our country. The civil code is compiled, a series of integration of old and new laws is inevitable, so the cost of legislation will be greatly reduced. At the same time, the system will bring more and more economic benefits and net income, legislation conforms to the principle of cost effectiveness. It’s worth mentioning that the transferring guarantee can help the weak to get financing for development, reflecting the warmth of the socialist legal system and promote social equity and justice.On the feasibility of legislation, because there is effect meaning in the expression of intention of the parties, the transferring guarantee does not constitute a veiled expression. Giving the debtor the rights of advocating the liquidation in implementation of the right can solve the problem of fluidity contract. German expectant right said admitted that the creditors enjoy the ownership instead of new property rights, so the transferring guarantee does not violate the principle of numerus clauses.The applicable scope of Article 24 is very narrow, and not consistent with the traditional concept of guarantee. It can’t play a role of general applicability. Therefore, we need to further expand systemized legislation. The existing data on comparative law shows that the trend of the legislation of guarantee is codification. On the choice of legislation style, because the creditor’s right in transferring guarantee is not a new kind of guarantee real right, the system should not be placed on the property volume of civil code. Considering that the guarantee object is universal, transferring guarantee may not be placed into the obligatory right volume of civil code. Finally, the author advocates using combined legislative mode. In the future civil code, we can establish a separate chapter to specify the various types of guarantee and specifically provide that anyone may create a guarantee in the form of transferring ownership. We can join "guarantee trust" in trust law to provide theoretical support for guarantee. At the same time, cooperate with related registration of special law, to maintain the principle of public summons and public faith. On the registration publicity system, the author argues that using Internet technology for electronic registration. Try to register respectively and query uniformly through the national network. In order to prevent the information disclosure of the parties, the author argues that the registration content be cueing and simplified. In conclusion, the author advocated by double security ——theory and system to establish the guarantee system in China to reach the world.