The Construction Of Chinese Alienation Guarantee System

The Alienation guarantee is a kind of untypical guarantee system of transfer with a long history,which can be traced back to the Fiducia in Roman times 3,000 years ago.In short,it guarantees the creditor's rights by the way of transferring ownership of collateral.The Alienation guarantee has the advantages which the traditional typical guarantee system does not have,such as the strong function of financing,playing a role as the collateral,the extensive subject for Alienation guarantee,its simplicity and efficiency,the low transaction costs and so on.Although till now no country in the world has the Civil Code which stipulates the Alienation guarantee system,yet from modern times the scholars in different countries(regions)have never give up the efforts in making research on it.Nowadays Germany,Japan and Taiwan Area of China have established the Alienation guarantee system by way of case law.With the continuous development of China's socialist market economy and the growing needs of financing in the society,the Alienation guarantee has become a new choice for the economical and practical circumstance.The security relations are widespread in the areas of mortgage,the margin trading business,private lending and so on.If the Alienation guarantee can not be institutionalized for legislation,it is bound to form a legal vacuum and result in lacking legal guidance and criterions for economic activities,which will not be conducive to the healthy and sustained development of China's socialist market economy.Therefore,constructing the Alienation guarantee system becomes an important research subject.Although there are many problems in constructing the Alienation guarantee system under our current civil law system and the Alienation guarantee system is also eliminated from the Property Law promulgated in 2007,yet these difficulties and once-failed attempts could not be the reasons for avoiding our legislation of the Alienation guarantee system.This paper aims to explore the ways of the institutionalization and legislation of the Alienation guarantee system.In order to analyze and solve the problems of the institutionalization and legislation of the Alienation guarantee system thoroughly and comprehensively,and then make a Alienation guarantee system concept,this paper is divided into five chapters:The first chapter is the history of the Alienation guarantee system,including its origin and development.Through the search in the origin of the Alienation guarantee system,the initial and original form of it can be found.What's more,by studying the development process of Alienation guarantee system in European countries and in the countries of Anglo-American,the overseas theoretical basis for our constructing the Alienation guarantee system can be got.Thus it shows that the research of Alienation guarantee system is hold for water.Chapter II is about the existence and development of the Alienation guarantee system in China.It analyzes the use of Alienation guarantee system in the China's economical and practical situation and the possibilities for introducing it into the financial law,thus it points out the social practice for constructing the Alienation guarantee system.Chapter III is about the necessity of constructing the Alienation guarantee system.Compared with traditional typical guarantee system,the Alienation guarantee system has a unique advantage for our specific practice and national conditions.As a product of economic society,legal practice should be compatible with the market economy practice and its development level,which is necessary for the legislation of the Alienation guarantee system.Chapter IV talks about the feasibility of constructing the Alienation guarantee system.It makes the analysis and gives the solutions to the problems of legislation for the Alienation guarantee system,which paves the way for constructing it.Chapter V is the ultimate goal of this paper——the construction of Alienation guarantee system.It makes the selection of the model of legislation for Alienation guarantee system,and then makes a specific concept of Alienation guarantee system.