The Discussion Of The Transferring Guarantee System

The transferring guarantee is a kind of atypical guarantee system which takes the transfer of ownership as a means to achieve the purpose of credit.The system have been recognized to different extent in Germany,Japan,Taiwan of China.Driven by the financing needs,in recent years,China’s economic activities have adapted a great deal of transferring guarantee,such as the house sale as a guarantee and car trading as a guarantee,and equity transfer as a guarantee as well.However,as there is no uniform legal provisions,judicial practice for the guarantee does not have a unified understanding of similar cases,which can not maintain the interests of the parties and judicial majesty.I believe that in the current legal environment,there is not mature enough that transferring guarantee system be written into the Code,and we do not need to do.But we need to follow the existing legal requirements and on the basis of the means of interpretation,find the way of transferring guarantee.Therefore,on the basis of analyzing the characteristics and legal composition of the transferring guarantee,this paper demonstrates the legitimacy and necessity of its existence,and finds the convergence of the guarantee as an atypical guarantee system and the typical guarantee system.Coming up with the idea of guarantee legal relationship and how to determine its effectiveness.The introduction part introduces the basic situation of this system and it in our country from the concern,the current situation of the legislation and the present situation of the practice,.The text is divided into three parts:The first part is to clarify the guarantee system.To start with the definition toward transferring guarantee system of the existing scholars,and summing up the characteristics of the introduction of the guarantee;secondly introduced the legal composition which divided into ownership and security rights.In addition,the transferring guarantee system used to be compare to the misrepresentation,and the flow guarantee item prohibition and numerus clausus principle.The second part is the setting of a legal relationship with the guarantee.The legal action of the guarantee is civil act essentially,and from the point of view of civil legal action,it proves that the legal act of establishing a relationship with the guarantee is valid under certain conditions;and then discuss the form of contract,The scope of the requirements of the subject.The third part is the discussion about transferring guarantee.Theory should be applied to practice,which discusses the validity of the relationship between the assignment and the guarantee in practice.Which is divided into internal and external effects.The internal effect refers to the rights and obligations between the parties in the legal relationship.The external effect is the concept corresponding to the former.It refers to relationship between the third party and the parties in guarantee legal relationship.The conclusion part reaffirms the view of this article.In our legal environment,the object of transferring guarantee is not include real estate;In the present legal situation,the guarantee system is not incorporated into the code,but it should be recognized as the existence of the an atypical guarantee system and formed a unified understanding,in which this sort of practice could gain a unified judgments.