Analysis Of Construction The System Of Transferring Guarantee

The transferring guarantee, as an untypical guarantee system complying with the social development, is available in the most countries of two law families, such as German and Japan, the representatives of the civil law system, and America and Britain, the representatives of the common law system. These countries have let the transferring guarantee stand by legislation or precedents. However,in China, the introduction of such system is quite controversial. The main dispute is that the guarantee system seems contradictory to the principle of Numerus Clausus. Based on this, the practical and theoretical circles put forward the theory of " relaxation of Numerus Clausus". What we should notice is that if the strict adherence to the inherent right of property legal principle will lead to the property law and other laws disconnect from social, and hinder the development of China’s market economy. That is exactly why this paper want to deeply discuss the construction of the guarantee system. Therefore, from such perspective, this paper is to discuss the construction of the guarantee system with the analysis of the relevant system of other countries as well as to put forward certain views. This paper consists of four chapters.In the first chapter, the author makes an overview of the security system. Transfer guaranty has the following characteristics: firstly, it is not a typical guarantee. Atypical guarantee, in Japan, has another name:disguise guarantee. An important feature of atypical guarantee is that the whole rights are transferred whereas for transfer guaranty,only part of rights has been transferred. Secondly, the individual setting the security always occupies utilizes and benefits from the subject goods. This, to some extent, makes up for the shortcomings of typical security interest. Thirdly, the existence of the secured credit is the premise of transfer guarantee and its purpose is to realize the creditor’s right. Fourthly, the scope of the subject matter is extremely broad. The property scope of the typical security,such as the mortgage and pledge, is quite limited and can not meet the requirements of today’s society,especially the higher and higher requirements of various financing channels with the development of economy. Looking back,the atypical guarantee with no such restrictions. All the movable and immovable property, shares and intangible property such as intellectual property, and others, can be the object. With the obvious advantages,the transfer guaranty is accepted by the modern states.To analyze transferring guarantee, it relates to its historical origins. Transferring guarantee has a long history. It is said in two forms, one is in the Fiducia of Germanic law, while the other one is Treuhand of Roman law. Germanic law in the trust system is completely different from today, it is a testament to form, after development over time, gradually a guarantee of this new thing. In fact, the guarantee had already appeared in the Germanic law,which, but it is based on another form of guarantee to appear, its purpose is to better fulfill the debt and then in certain conditions transfer the real estate. In addition, the ‘Twelve Tables’ period produced the earliest form of security, which is called Fiducia and its another name is transferring guarantee.Then,this paper discusses the nature of transferring guarantee. For transferring guarantee, it is necessary to discuss its nature, that is to say, to discuss their legal structure,which actually refers to the ownership of the rights to make security issues. When talk of effectiveness and security, it highly depends on its legal structure. In a certain sense, different system will play a different effect. Then whether it is between the parties or between the parties and creditors, or even to the third party, the rights and obligations will be determined by the transfer guaranty. So how to define the nature and make the security system becomes a key, which is basic. Today, In Germany, most scholars think transferring guarantee is proprietary rights. Most Japanese scholars are in favor of the security right, which is put into use in reality,and,in our country, many scholars have also approved the theory, such as Liang Huixing,a very famous scholar Professor and also the editor of the book Chinese Real Law Draft recommendation draft, who has once said, “in essence, it is security interest.”This paper will be elaborated on these findings,and to talk about their own understanding of the constitute of law on this basis.In the second chapter, the author sums up the transferring guarantee system and makes civil law countries and common law countries. In the analysis of the system of transferring guarantee of continental law system, the paper selects Germany, Japan, Taiwan area of our country as the object of study, and discusses the development of transferring guarantee in these three countries. In the analysis of the relevant system of the Anglo-American countries, this paper selects the United Kingdom, the United States as the object of analysis, and discusses the development of "mortgage" system in the two countries. At the end of this chapter,in combination with the above content, the author thinks about the system of transferring guarantee in our country.In the three chapter, the author analyzes the setting and the effect of the transferring guarantee system. The analysis of its setting is mainly from the subject of the transfer guaranty, the scope of application, the contract and so on. The analysis of its effect is based on its internal force and external force.In the fourth chapter, the author makes an analysis on the relaxation of the Numerus Clausus and, on the basis of the theory, how to construct the system of transferring guarantee. The question of the transferring guarantee system mainly depends on its likely against the Numerus Clausus. Therefore, this paper on the basis of it will also discuss the relaxation of Numerus Clausus. First of all, the Numerous Clause has certain hysteresis. Based on the consideration of certainty, the law should be relatively stable, thus causing certain hysteresis. In the high speed development of Internet industry and the financial industry, the Hysteresis of Numerus Clausus produced a lot of questions. New type of property rights can’t be fully protected when we apply the Numerous Clause strictly. These new type of real rights for security has not stipulated in the Property Law of our country, But they get a lot of use in practice and be recognized in society, and having been admitted and adopted by commercial activities,so they are known as the untypical guaranty real rights for security. Second, The Principle of Autonomy of Will is one of the most important principle in the civil law system and even the whole legal system,and it emphasizes the autonomy of private law sp,irit that is to say it requires everyone respect the parties will as soon as possible in the civil and commercial activities,and encouraging,themselves to trading according to their own free will. Civil law is private law and autonomy and freedom of contract are two basic principles in its,field so the prohibition of the parties to set up a new type of property rights is contradicted against these two principles.After that, the article analyzes the necessity of constructing the system of transferring guarantee in our country. After the analysis of the current practice, the conclusion is that it is necessary for our country to construct the system. In addition, the article also makes a detailed analysis on the feasibility of the construction of the system of transferring guarantee in our country from three aspects. And then come to the conclusion that China’s construction of the guarantee system is feasible.It is necessary to construct the system and the system is feasible, and it is necessary to discuss how to construct the system. First of all, At first, the paper analyzes the legislative design. There are two regulation modes, called the Civil Code regulation mode and the Special Regulation mode.In the civil code regulation mode, it is divided into the regulation mode of the real right and the regulation mode of the creditor’s rights. In the Civil Code regulation mode, the Civil Code regulating property rights model is the Japanese constitution,which puts transfer guaranty into the scope of security interests. It has two major drawbacks, one is not pay enough attention to the transfer guarantee of external basic form, and the other is that this mode is not see the purpose of transfer of ownership, and No distinction is made between typical guarantee and transferring guarantee. If we hold the view that the transferring guarantee belongs to ownership, it does not meet the legal concept of "secured party do not enjoy the ownership of the subject matter". Under what circumstances does the use of Claims Civil Code regulation mode? The subject of transfer guaranty is creditor’s rights. However, with some exceptions, Once parties set the transferring guarantee on the movable property via the possession of change,it will lead to the transfer of ownership, but the mortgagor is still in possession of the subject matter. If the parties agreed to adopt the direct delivery of the way, the mortgagor shall transfer the direct possession of the subject matter to the insured person. Therefore, no matter how we set up the transferring guarantee,it can not be separated from the property law and the law of obligation.General law and special law is general and special relationship, therefore, when we use the regulation of the special law mode, there will be problems like the regulation mode of civil code. In the existing legal system, Under the existing legal system, special law regulation mode cannot be transferring guarantee system classified to a specific law, the main reason is transferring guarantee is not in the category of a typical real right for security, while not belonging to the obligatory right. Generally, there is no one law that can adjust the two kinds of legal relations. Therefore, the view that the legal relationship of transferring guarantee is adjusted by the property law or the law of creditor’s rights, is inconsistent with China’s basic legal concepts.In the author’s opinion, the German model can be used for reference to the system of transferring guarantee of our country, and there is no need to legislate more, The most suitable way to enact the transferring guarantee is place it in the whole civil law system,and When necessary, the scope of adjustment will be extended to the relevant departments of law. This can better reflect the characteristics of the transferring guarantee, especially its flexibility. This paper also makes a detailed description about it. After that, combined with the above analysis,this paper makes a detailed description of the contents of the legislation,and,on how to construct this system,puts forward three suggestions.