| Arising from the trust system of the Roman andGermanic law, the alienation guarantee has eventually gained its dominance in German after developing for nearly a century. With the increasing of domestic economy recent years, a great deal of transactions have been seen to be carried out in the alienation guarantee form. Economic entities, in the need of finance, normally may transfer its real estate or other property(through entering into a sales contract)(“the Contract”) to acquire loans. As no specific regulations concerning the alienation guarantee are stipulated, different judgments have been made by courts of various regions, with different opinions given by the court toward the effectiveness of the Contract. On Sept 2015, the Supreme People's Court enacted the judicial interpretation of judgingprivate lending cases(“the Regulation”), with article 24 providing judgment guidance to such cases. However, the Regulation avoids the issue of the effect of the Contract. In my opinion, providing guarantee through the Contract belongs to the alienation guaranteeand although there is no governing law at the moment, the provisions agreed in the Contract are not in violation of the law of PRC and should be valid and effect. Also, Article 24 of the Regulation would be legally logic only when the Contract is valid. Besides, Article 24 has established the alienation guarantee system on the level of juridical practice.The first part is the introduction of alienation guarantee and relevant systems. Firstly, this part briefs the origin of alienation guaranteeand then gives a definition to the alienation guarantee after making reference. Afterwards, this part introduces the difference between alienation guaranteeand the typical guarantee andelaboratethe definition of contract for alienation guarantee as well as its standard components and then, this part categories the contract for alienation guarantee into several forms according to the business practice.The second part is the conclusion and analysis of the alienation guarantee cases of china. This part concludes and charts different opinions of different courts on the issue including the effect of contract for alienation guarantee, real rights for security, and the achievement way to the editor's right, with which, this part concludes the reasons for denying the effectiveness of the contract and contradicts them in the fourth part of the main body.The third part is the analysis of the Regulation and the conclusion that the Contract should be effective. This part analyzes the positive contribution Article 24 can make to the judicial adjudication as well as the problems it can solve and the problems still leave unsolved. Besides, this part concludes in accordance with Article 24(2) that the Supreme people's court has established the alienation guarantee system on a judicial adjudication level and then through backward induction, this part draws the conclusion that the Contract should be effective and valid.The fourth part are reasons for the effectiveness of the Contract. This part contradicts the juridical reasons(non-true intention of the party, in violation of theNumerus Clausus Principleand in violation of the prohibition of flow escort item) concludes in the second part of the main body, and then, in accordance with the distinctive principle in real right, draws the conclusion that the Contract should be valid no matter whether it can cause the effect of security interest.The fifth part is the necessity and significance to acknowledge the force and effect of the Contract. On one side, through the comparison betweenalienation guaranteeand typical guarantee, this part concludes the difference of their legal structure and, that typical guarantee cannot cover alienation guarantee. On the other side, this part summarizes the special function of alienation guarantee, which well fits the necessity of business practice. Therefore, it is of great significance to acknowledge(at least not to deny) the effectiveness of the Contract on the practice level. |
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