Research On The Legal System Of Transferring Guarantee

The guarantee of alienation is a non typical security interest established by the customary law in the form of transfer of ownership.It has the characteristics of non limited rights,contractual nature of content,and the scope of the subject matter.Today,Germany,Japan,Taiwan and other countries and regions of continental law,through the customary law in the judicial practice to recognize the validity of the guarantee.However,due to the change of real right and the different legal systems of various countries (regions),the scope of the subject matter which is applicable to the guarantee is slightly different.China's "property law" in the beginning of the legislation,once "whether or not should be the guarantee system to join the" property law "in the" property law",in the academic field has been heated discussion.But due to many reasons,the guarantee has not been stipulated in China's "property law" in the end.In recent years,the number of the cases involving the guarantee of assignment is increasing year by year.For our country,the nature of the guarantee and the validity of the guarantee are put forward.On the confirmation of the nature of the guarantee,there are two kinds of theories:"the law of ownership" and "the law of guarantee right".Among them,the "relative ownership constitutes" adopted by Germany,and the "guarantee" said that the adoption of Japan and Taiwan.Through the analysis on the properties of transferring guarantee,and analysis the basic theory of property law,transferring guarantee actually does not violate the provisions "of the legal principle of property," a one right "principle and"fluidity clause".Through the analysis of the function of transferring guarantee in social practice,it is concluded that the guarantee has the characteristics of financing,which is beneficial to the settlement of creditor's rights.But there is no denying that there is still a guarantee to increase the economic burden of the transaction related to the security of the drawbacks of the interests of the people related to the transaction.In the interests of security and efficiency,the guarantee of assignment is reasonable.So we can not deny the role of security,and should be through the system to make up for its deficiencies.The effect of transferring guarantee in China's judicial practice and no firm conclusions,which leads to the verdict of the case and the basis for deciding the existence of chaos.Special guarantee forms such as "pay off a debt in labor by a thing"also make the establish of transferring guarantee in our country more necessary.However,transferring guarantee should not be specified in the "Property Law",which should be recognized by customary law.Because the guarantee property of the public notice and discharge of defects,so it should be through the special law to join some new publicity and liquidation to solve it.So that the guarantee can be more in line with China's national conditions,and more applicable.