On The Application Of The System Of Transferring Guarantee In Judicial Practice

In the continuous development of social and economic activities, in order to achieve maximum benefits and efficiency optimization, new guarantee will continue to appear, this needs the law with the trend of economic development, proper adjustment, recognition and regulation of the new financial guarantee. The guarantee began in Germany in 1880s, with the development of the practice of long-term commercial activities, which is accepted. It is mainly through the way of the transfer of the right to form a credit guarantee, so as to achieve the purpose of financial intermediation. The specific performance of the collateral ownership has changed the way to provide security for the debt, if the debt is repaid, the debtor can retrieve the collateral,if the debt is not repaid, the creditors of collateral have priority right. Because of the transferring guarantee in the state of right, the effect of the guarantee are different from the traditional sense of the typical security, and there is no law of the provisions, so the academic fields debate for a long period and doubt about its effectiveness. Some scholars say this is hypocritical and others believe that the existence of concessional guarantee violate the legal provisions on the prohibition of fluidity contract, or even violate the legal principle of property rights. However, with the development of the times, the guarantee to expand the financial channels and guarantee collateral usufruct, improve transaction security etc. in the security field occupies a special position, not only in Germany and Japan and other countries where it becomes one of the most widely used form of security, but also in China's economic trade it also appears frequently and gradually expands the influence.This paper is divided into four parts:the research on the system of the guarantee system and the determination of the judicial practice in our country. The first part introduces the basic theory of transferring guarantee briefly and the security concept, which are different from the typical security features, the setting up of the mode, the effect of real right and creditor's rights and the advantages and disadvantages of the system. Through the introduction of the basic theory of transferring guarantee, the paper emphasizes the different functions of the guarantee in the guarantee, the creditor and the third person. The second part, from the development of the guarantee system of the transfer which Germany and Japan develop better, introduces and compares the development of the security system and the provisions of the two countries. The third part carries on with the introduction to the three cases in the judicial practice in China, the analysis of China's judicial field of the different identification of "the name is sale, but the fact is lending" cases. Through the analysis of the related concepts, it is clear that the guarantee does not violate current laws of our country and emphasizes the necessity of the system introduced into China. The fourth part puts forward suggestions of the establishment and perfection of transferring guarantee system in our country. From the legislative and judicial point, it is stressed in the realization of guarantee right, dealing with the subject matter of compulsory liquidation, so as to ensure that it does not violate the provisions of the prohibition of fluidity contract.