Study On The System Of Relinquished Security

With the continuous improvement and development of China’s socialist market economy,the transfer of guarantee transactions in social life is becoming more and more.As China’s property law legislation,there is a major debate between the theoretical and practical circles,the transfer guarantee system has not been stipulated in the property law.When the court hears the disputes arising from the transaction,there are similar disputes in the development of the system abroad.As to whether the guarantee violate the principle of statutory real right,whether the parties in the transaction in the form of fluidity contract,whether collusion false intention as well as how to determine the type of transaction of creditor’s rights to realize the way agreement etc..Because of the lack of uniform standards,the court’s decisions on such transactions are very different.To sum up,there are three main points of view: affirmative,partial affirmative and complete negative.The Supreme Court in order to referee uniform standards,establish judicial justice and authority,solve the courts in adjudicating such cases when the "somesentence" phenomenon,in August 6,2015,promulgated the "Supreme People’s Court on Several Issues concerning the trial of private lending case applicable provisions of the law"(hereinafter referred to as the "private lending regulations"),including twenty-fourth of the private lending contract secured by trading phenomenon make the rules,is the Supreme Court considered provisions on transferring guarantee.But this article deliberately avoided the focus problems in judicial practice,such as the sale of the validity of the contract,the contract of sale is the security of property rights or creditor’s rights guarantee and whether creditors have the priority right of compensation is still not clear.Therefore,the introduction of the regulation has also triggered a heated discussion between the theoretical and practical circles on the issue of the transfer guarantee system in our legislation.The author believes that the provisions of this article have certain limitations in regulating the transfer guarantee transactions,and it can not play a universal adjustment role,there are still many shortcomings.Therefore,we should make a theoretical research on the basis of the legislative provisions of this article,combined with the current actual situation in our country,and provide favorable theoretical support for the establishment of transfer guarantee in our country.In view of the above situation,the author intends to discuss the transfer guarantee system through this article.This article is divided into five parts.The first part mainly expounds the historical origin of the transfer guarantee system,the development of countries and regions in the civil law countries,and the basic concepts and characteristics of the system and the definition of the nature of the system.The second part introduces the arrangement of transfer guarantee.The establishment of the subject in addition to the creditor and the debtor,third people can be set;the subject matter of a wide range of those who have the transfer of property rights can become the subject;the system needs setting behavior actively,the behavior is set by the creditor behavior based and the realization of the real right behavior of it.The third part expounds the publicity of transfer guarantee.In my opinion,we should give full consideration to the characteristics of transfer guarantee and give full play to the institutional advantages that it does not have with the typical security interests.The public notice of the movable property transfer guarantee in China can be carried out by means of public ownership and registration as a form of counter competition.Real estate can be registered in the form of antagonism.The fourth part introduces the effectiveness of the transfer guarantee.Through the different departments of our country that introduced the trial practice of transferring guarantee validity,conflict analysis and put forward the system of transferring guarantee clause is not with the law of our country and the prohibition of fluidity contract the legal principle of property rights,but also does not constitute collusion false meaning,stressed that it is necessary to introduce the system.The fifth part of the transferring guarantee system in our country the realization form of suggestions,one is to emphasize the mandatory liquidation obligations at the same time we should pay more attention to the autonomy of the parties,the two is to improve the provisions on the exemption right in bankruptcy,creditors can guarantee clear priority rules.