Analysis Of The Judicial Status Of Liquidity Clauses

For the guarantee of real right,our "Real Right Law" and "Guarantee Law"stipulated that the fluidity clause is invaild.But in practice,the fluidity clause is still remained and have been appear out of the real rights for security.Like the agreement about transfering the object's ownership to the creditor while the debtor cannot pay the debt in transferring guarantee,pay a debt in kind or using a sales contract to guarantee the debt.Although these conditions are not belong to the guarantee of real right,but the court often enter a judgement using the fluidity clause is invaild in our Real Right Law in practise.In the judgment of the court in our country,still controversy over the effectiveness of such agreements.This text making analysis of the cases by different kinds of fluidity clause searched in the magic weapon of Peking University to show the attitude of our court.For the fluidity clause in the guarantee of real right,the court strictly judgment according to the "Real Right Law" in our country,to determine whether the agreements belong to the fluidity clause;most courts affirmed the effect of transferring guarantee,but the agreements about transfering the object's ownership to the creditor while the debtor cannot pay the debt are still invaild;most courts affirmed the agreement of pay a debt in kind,but still remains a few courts treatment it as invaild fluidity clause;the court often treat the new method by using a sales contract to guarantee the debt rising in recent years as invaild fluidity clause,because the both parties's agreement of sale is not true,the agreement about transfering the object's ownership to the creditor in this situation is contrary to our "Real Right Law".The legal provisions of fluidity clause is invaild is inconformity to the autonomy of will,in the situation whlie there is no a third party who has right to the obgect or the agreement is no harm to the debtor,we still treat the fluidity clause as invaild is unreasonable.In practise,people will use other similar agreement in order to avoid the stipulation.This is not beneficial to convenient the transaction and may make difficult to the judgement because of there is no legal provision to follow,appear the situations of the same cases with different judgements,it is not good to build prestige of the judgment.In future legislation,we should affirm the effect of the fluidity clause in conditional.