The Study On Transferring Guarantee System In The Private Lending

When China began the legislation of property law, whether the transferring guarantee system should be incorporated into law has been controversial. When the property law was enacted in 2007, the legislator inclined to oppose the opinion of the system, and the system was not included in the "property law". 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 that the theoretical and practical discussion of the security system of the guarantee system, it is worth discussing hot spots.It can be seen in the content in Article 24,the true meaning of both sides who signed a contract is for Guarantee on the loan contract or obtain the ownership of the subject matter of the sale contract by paying the price, which is the basis for dealing with such disputes. The transfer guarantee system is rejected by theory and practice, because the system itself is designed "fluidity clause". And it is a kind of property right or a kind of creditor's right is still controversial. If it is a kind of property right, whether it violates the requirements of principle of Numerus clauses. If it is a kind of creditor's rights, How is the validity of the contract? Is it necessary to the provisions of the civil code in the future? And how can we design the future legislation? This series of questions are worth our thinking.In order to solve the above problems, first of all, we must make clear the concept and nature of the guarantee system. The author combines Germany and Japan as well as China's Taiwan region to define the concept of the guarantee system. And analysis on the interpretation of the different concepts of the guarantee system which is made by different scholars in the mainland of China. Meanwhile the paper analyzes the legal basis and practical basis of the definition of the concept of transferring guarantee. For the nature of the guarantee of the discussion, it mainly focused on the issue of security is the property right guarantee or a kind of creditor's right guarantee ? At present, most scholars claim that transferring guarantee is a kind of property right guarantee, but the author does not agree. The author believes that transfer guarantee should be a kind of credit guarantee. For example, according to the Article 24, security in the sale and purchase agreement is allowed, and this kind of guarantee should be secured to the creditor's rights.The ownership of the subject matter is transferred to the creditor, after the establishment of the sales contract. Actually, the purpose of this kind of guarantee is to ensure that the loan can be returned on schedule.As the sale contract is a legal relationship of creditor's rights and an independent legal relationship, it is fully able to its own to set of loan contract to provide security. There is no need to be classified in the category of property and publicity to achieve its purpose.The guarantee system has only been left in practice and has not been stipulated in the law. The judicial interpretation of the Supreme People's Court promulgated, many scholars believe that the transferring guarantee stipulated in the "property law" or other relevant laws is possible. But author hold the opposite view. First of all, regardless of the nature of the transfer guarantee is the property guarantee or credit guarantees, it is not convincing that introduce the guarantee system in the law by only a judicial interpretation. Although in the legal system, it does not explicitly set up the guarantee system, but the introduction of judicial interpretation indicates that the legislation pay more attention to security transfer system. It can be predicted that the development of the guarantee system needs a long process.