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Research On The Effectiveness Of The Alienation Guarantee

Posted on:2018-11-21Degree:MasterType:Thesis
Country:ChinaCandidate:W LiuFull Text:PDF
GTID:2336330518956463Subject:Civil and Commercial Law
Abstract/Summary:PDF Full Text Request
The alienation guarantee comes from the trust system of the Roman law,which has a long history of development.The alienation guarantee is a means of transfer of the right to transfer,with the appearance of the assignment and the purpose of the secured claim.Because the civil law theory can not solve its problem in the publicity and the integration of the legislative logic system,and some scholars believe that the mortgage system to a large extent absorbed the guarantee system advantage.Therefore,in our current property law has not provided for the guarantee system.However,the guarantee method also has tenacious vitality,with the guarantee has to expand the financing mode,the debtor possession of the subject and other advantages,saving transaction costs have great economic value,tool value and independent value,In economic activities,the civil subject is more widely used in this way;ln the application of the law,the lack of clear legal provisions lead to the application of legal difficulties;ln theory,arguing that the dispute over the existence of the guarantee system has not ceased.At present,the academic community from the guarantee system to build and legislative regulation to explore the guarantee,In this paper,the author tries to discuss the effectiveness of civil action with the guarantee of property rights and creditor ’s dual structure theory under the game of real right legalism and autonomy of ideology under the background of compiling the civil code.In the theory of civil law,whether the guarantee of the validity of the validity of the problem;Under the existing law,from the point of view of civil conduct system,whether the guarantee act has legal effect.This article in order to solve our current law how to determine the legal effect of the guarantee.This paper consists of three parts:The first part of the introduction and the question part.This paper describes the research background,the research method and the structure of the paper,and the value of the validity of the guarantee:the value of the instrument,the economic value and the independent value.Secondly,it discusses the concept and legal characteristics of the guarantee and then discusses the concept and characteristics of the validity of the guarantee,and puts forward their own opinions on the concept and effect of the guarantee.Then it summarizes the current situation and judicial practice of the issue of granting and guaranteeing the validity of the guarantee,and summarizes the legal practice of the guarantee and the effectiveness of the guarantee and the theoretical controversy.In theory,it discusses the issue of the validity of the guarantee and the existence of the law The issue of the validity of the guarantee.Finally,this article leads to the four issues related to the legal effect of the guarantee,the first is the question of the validity and recognition principle of the guarantee,and the second is that the guarantee is effective as a civil legal action.The third is to give the validity of the validity of the warranty and the status of the problem,the fourth is to give the validity of the effectiveness of the existence of the responsibility of the distribution of responsibility and bear the problem.The second part carries on the theoretical analysis to the question of the validity of the guarantee.There are four main points are as follows:The first is to discuss the principle of granting the validity of the guarantee should take the principle of private law autonomy,explain the relationship between private law autonomy and autonomy,and the relationship between the principle of property rights,the principle of public order and goodness,The principle of private law autonomy should be expanded and the legal principle of property rights should be limited,and that the principle of private law autonomy is adaptable and reasonable as the principle of determining the validity of guarantee.The second is in the civil legal acts of the composition of the elements of the point of view,detailed analysis and summed up the provisions of the guarantee to take effect of the special elements,to build a detailed effect of the four elements.The third is to discuss the relationship between the guarantor and the third party in terms of the nature of the legal relationship with the guaranty act as the debt,and to discuss the relationship between the guarantor and the third party.solve.Fourthly,from the perspective of civil law theory to the classification of the state of civil legal action,the author further analyzes the validity status and the responsibility of the guarantee under the four conditions of the entry into force and the nature of the creditor’s rights.The last part attempts to explore the solution to the question of the effectiveness of guarantees under the current law.Combined with the use of foreign law and the practice of the use of law and practice,mainly from the Anglo-American law and civil law system to select some representatives of countries and regions,summed up the two legal systems related to the system.Such as:registration as a means of publicity is necessary,with the confrontation;clear concessions also have a subordinate to clarify the liquid-type guarantee and liquidation of the scope of the difference between the guarantee,in the implementation of the effectiveness of the guarantee in the settlement The method of selection,the abandonment of the liquid type,the granting of the guarantee and the recognition of the liquidation of the guarantee are legally binding.To further explore the purpose of the issue of guaranteeing the validity of the guarantee and the status quo of the guarantee of our country,and put forward the proposal of determining the validity of the guarantee,such as the four proposals to optimize the system of guaranteeing the validity of the guarantee:to determine the validity of the guarantee Principles and standards;accurate identification of the validity of the validity of the guarantee;the exact scope of the validity of the assignment and the territorial jurisdiction,and the attribution of the responsibility for the existence of the validity of the guarantee.In this paper,the author tries to discuss the validity of the civil action of grant and guarantee under the background of the codification of civil law,under the theory of the dualism of real right and creditor’s right under the theory of real right legalism and autonomy of autonomy.To explore the effectiveness of the guarantee civil question:what is considered in this paper,in order to solve the commenting on the legal guarantee problems,first from the current condition in our country and guarantee the problems existing in the legal guarantee,and then discusses the defining the concept and legal nature of guarantee to acknowledge rationality has the force of law guarantee,then study the effect of guarantee principle and constitutive requirements,and the different status and responsibility,finally combined with outside the recognition of law theory and the practice utilization and the method,put forward some suggestion on how to maintain guarantee effectiveness such as standard to determine the ownership of the guarantee;Accurate recognition imputed to guarantee the effectiveness of ownership;The responsibility of refining effect state guarantee.
Keywords/Search Tags:the Alienation Guarantee, the Effectiveness, the Responsibility, the Applicable Law
PDF Full Text Request
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