Research On Legal Issues Of The Atypical Property Rights Guarantees

The atypical property rights guarantees is the guarantee that the property rights are not expressly provided in the current civil law. The SMEs are very important in socio-economic, but also vulnerable and easy to fluctuate. In face of the shortage of financing channels, these enterprises choose the property rights which are not specified in the existing civil law as corpore to guarantee the financing funds debt. However, the legal nature of the guarantees is not cleared so that they bring a lot of legal risks in financial practice. First of all, the legal nature of these atypical property rights guarantees is still controversial. Second, it is also a problem of how to apply the law in these atypical property rights guarantees.This paper first introduces the practice of the atypical property rights guarantees and the academic controversies. Then, the paper studies the nature of the atypical property rights guarantees by analyzing the focus of the academic controversies and the judgment standards of establishing the atypical property rights guarantees. The paper tries to divide the guarantees of the atypical property rights into three: the atypical property rights pledges, the atypical property rights mortgages and the atypical property rights transferring guarantees. Then, based on the difference of the atypical property rights guarantees, the paper is going to discuss the problems of their publicity and validity.Finally, according to the practice and the demand of the legal system of our country, the author puts forward some suggestions on the legislation to protect the atypical property rights guarantees in our country.In addition to preface and conclusion, this paper is divided into four parts.The first part is the qualitative analysis of the atypical property rights guarantees.The nature of the atypical property rights guarantees in the academic circles is divided into three main points: the atypical property rights pledges, the atypical property rights mortgages and the atypical property rights transferring guarantees. Based on the analysis of the focus on the controversies and the principles of the judgment standards of establishing the atypical property rights guarantees, the author's idea is that the atypical property rights are also divided into three categories as above in different reasons.The second part is the publicity of the atypical property rights guarantees. The author makes a judgment on the publicity principle of the atypical property rights guarantees from two aspects: one is the legal nature of the atypical property rights guarantees; the other is the legal constitution of the atypical property rights guarantees.The conclusion is that the circulation forms determine the method of publicity. On the basis of determining the principle of publicity, the author also analyzes the specific publicity methods of the atypical property rights guarantees.The third part is the validity of the atypical property rights guarantees. The author believes that the validity rule is based on its nature. The atypical property rights pledges adapt to the delivery or registration as the source of the effectiveness of the law. The atypical property rights mortgages adapt to registration. The atypical property rights transferring guarantees also adapt to registration. Then, the validity of the atypical property rights guarantees are discussed separately according to the legal publicity method and without the legal publicity method.The fourth part is the improvement of the legislation in the atypical property rights guarantees. As the atypical property rights guarantees can effectively solve the financing problem, it has become an important way of financial debt guarantee. But they are limited by the strict real right legal principle of our country and the development of the atypical property rights guarantees is subject to many restrictions. To improve the legislation in the atypical property rights guarantees, the author proposed three ways to choose: First, ease the real right legal principle. The law should recognize the analogy application of the atypical property rights guarantees in property law or other property rights system. Second, expand the scope of the property rights by amending the laws.Third, recognize the validity legally of the property rights transferring guarantees.The innovation of this paper lies in the study of a wide variety of new types of guarantees by narrowing the scope of their objects and proposing the concept of the atypical property rights guarantees. Then, the paper classifies the atypical property rights guarantees by analyzing its legal attributes. Besides,the paper discusses the different publicity methods and the validities of the atypical property rights guarantees. Finally,the paper puts forward some suggestions for the atypical property rights guarantees and judicial practice on the basis of analyzing the advantages and disadvantages.