The Study On The Legal Risk Of Right To Fructus Of Real Estate Pledge Financing

Referencing article ninety-seven of judicial interpretation of<Guaranty Law of the People's Republic of China>,which sets the institution of the pledge on the right to fructus of real estate such as highway,bridges,tunnels and ferries,banks innovate a variety of pledge of atypical rights such as non-rural power charging right pledge,water fee charging right pledge,scenic spot ticket charging right,management of sewage treatment pledge,management of television channel pledge,management of passenger bus line pledge,store tenant rights pledge,management of real estate pledge etc.The rights pledged are relying on the real estate,some of them are franchised,some do not need to franchise,the author named it as right to fructus of real estate,and count general obligation as its property.Banks is generally believed that the right to fructus of real estate pledge is a kind of low cost,high efficiency way of guarantee,the characteristics of the right to fructus of real estate pledge loan development is high speed,high single amount and high proportion.On the base of presenting our country law related to the right to fructus of real estate pledge,analyzing judicial cases and bank practice cases,the author draw a conclusion that under the current legal environment,there are risks and issues like lack of effective legal basis,the deficiency of pledge registration,the difficulty of enforcement of the right of pledge,the effect of guarantees is not satisfactory etc,that exist in the right to fructus of real estate pledge.In order to solve the insufficiency of the legislation and legal risks existing in the practice better,the author carried on the Germany,the United States and Taiwan right to fructus of real estate pledge system for comparative analysis.In reference on the basis of investigation,it is suggested that on one hand,in legal terms,define the accounts receivable by legislative interpretation,apply the transparency provisions of pledge flexibly,release fluidity clause conditionally in order to broaden the enforcement of the right of pledge,improve the current accounts receivable pledge registration system;on the other hand,banks should give full play to the characteristics of their own risk exclusive,they should sltrengthen risk supervision in the whole processiong of the right to fructus of real estate pledge financing.