The Validity Of The Transferring Guarantee Under The Current Law In China

The Transferring Guarantee System originated in Roman law, is a warranty type of right transferring, and includes two aspects make the guarantee. The core is the transferring of ownership in credit and debt in order to achieve security purposes. In practice, economic activities have expanded to make and guarantee security for financing, debtor to retain possession and other institutional advantages of the subject matter, helps to save transaction costs, and can be publicized, clearing way to ensure that both the interests of balance. Transferring Guarantee has been a hot academic discussion, debate and ultimately not significant property law which expressly provides, but in judicial practice there is a lot to make the case and secured transactions. Currently many scholars built from the system or framework regulating angle to explore the warranty. So this article combined with the relevant provisions of current law and specific cases from the interpretation theory point of view, to discuss the effectiveness of the transferring guarantee and explore the dispute resolution scheme under the framework of current law.This article includes the following five parts:The first part is to raise the problem, through introducing the advantages of the basic legal structure and institutional of the transferring guarantee, reveals the main topic of this article, to explore the effectiveness and security of our current laws.The second part is to make comparative analysis, including Germany, Japan, the United States and the security system so that we can develop a deeper view into the transformation of foreign country. And then elaborating national attitudes toward the transferring guarantee combined with laws and regulations in our country, and describe the development of the transferring guarantee under current laws.The third part is to make a simple generalization of the current research status of the transferring guarantee by introducing positive and negative theoretical basis in academia, then explore the efficiency of the transferring guarantee under current laws combined with the analysis. Which we discuss in detail the legality of transferring guarantee and should make a distinction between the mortgage and others, and try to solve the legal issues from three different types of transferring guarantee as the starting point:the real estate transaction practice, movable property dispute case, and warranty of rights.The fourth part attempts to explore the solutions of disputes under the existing legislative framework. Among which the author proposes three ways, one is to seek the proper treatment for cases from the perspective of Contract Law, second is to distinguish different warranty types in processing, third is emphasizing the obligation of liquidation.The fifth part of the paper summarizes the contents and makes a conclusion that the Transferring Guarantee System is so important that we should recognize its effectiveness combined with existing laws and regulations rather than avoid it. Only in this way, our laws can provide better supports to the prosperous development of national society and economy.