The Study On The Constructing Of Transferring Guarantee System In China

In recent years,the state has been pushing forward the supply-side structural reforms.Enterprises need to invest a lot of money to develop high-quality products,and the financing needs are on the rise day by day.However,the current laws have too few provisions on the types of guarantees that can not meet the requirements of enterprises for financing guarantee In order to compensate for the disadvantages of the typical guarantee,the guarantee of diversification and development as a kind of atypical guarantee is based on theory and jurisprudence.It has been widely concerned by people from all walks of life.It has been widely used in our country's social economy.The role can not be underestimated.There is no doubt about the advantages of concession and guarantee,but there are some shortcomings.the system has not yet appeared in our country's legislation and has a lot of research space.We should perfect the system in the light of the reality of our country and serve the public in a down-to-earth manner.Judicial reunification,which is reasonably uniform,is important for safeguarding the legal authority and enhancing the credibility of the judiciary.In the process of perfecting the concession guarantee system,all countries and regions in the world have made great contributions.Although the conceptions of concession guarantee are inconsistent,they both agree that the concession guarantee refers to the guarantor's guarantee debt fulfillment Transfer property rights protection,creditors enjoy the right to return the collateral.In terms of the setting,the parties must make the legal act of the lender,that is,the written assignment of the assignment warrant and the delivery of the transfer of the security mark in the form of possession of the change;the scope of the subject matter is very wide and includes All transferable property and power,but according to the relevant laws and regulations,some of the property is not allowed to set the guarantee.Due to the civil law system in our country only admits the causation of the real right act,and let the guarantee take the form of the security right in the legal constitution,so our country should insist on the subordination of the guarantee.Due to the principle of autonomy of private law and the performance of secured creditor's rights,what is the relationship between the parties and the third party when disposing of the subject matter with the guarantor and the security right?Also as an atypical guarantee,that is,the retention of title,although the two types of guarantee are similar,they are different in terms of scope,transfer and practice.Chinese-style mortgage is inseparable from assignment and guarantee,both of them have different purposes and applications,legal relations and registration system.Assurance in Germany and Japan and other countries not only has a wide range of applications and has a long history,in the field of security can not be overlooked.Our country is deepening the reform in an all-round way,and the socialist market economy continues to prosper and develop.The typical security interests can not meet the diversified needs due to complicated procedures,high costs and limited types of guarantees provided by law.However,Its unique advantages are widely used in practice,especially in the area of private lending.If our country constructs this system,it is good for the perfection of the legal system of guarantee in our country.Most scholars agree with this and make it have incomparable advantage with other guarantee ways of guarantee,and they are widely used in the civil society.However,some scholars think that the grant of guarantee violates the principle of"statutory property right" and "the Prohibition of Liquidity Provisions",and disagrees Construction of transfer and guarantee system.Even if academics can not reach an agreement on whether or not to construct a concession guarantee system,concession guarantee is extremely common in our country and there is a strong demand for social reality.All these provide the realistic basis for our country to construct a concession guarantee system,and Germany.The mature rules of the transfer and guarantee provided theoretical reference for our country.The parties agree to assign ownership at the time when the assignment is warranted,not at the expiration of the term of the performance obligation,and the liquidation regime uses a forced liquidation process.It can effectively prevent the possibility of violating the rights of the security rights holders and balance the interest of the parties concerned.The interpretation of the law of property should be expanded;the "law" in the law of property should include statutory and customary law.Only by advancing with the times can we safeguard the authority and vitality of law.China can stipulate the system of transfer and guarantee in the form of special legislation in the stage of future maturity.In order to make the system play its maximum function and reduce its side effects,our country should carry out legislative regulation in public announcement and liquidation proceedings.However,only legal regulation can not effectively prevent the possibility of creditors seeking violence.They also need to be supplemented by the basic principles of civil law such as the principle of public order and good faith and the principle of good faith.