The Construction Of Transferring Guarantee System Under The Background Of Civil Code’s Codification

When the Property Law was firstly enacted in 2002,it was argued whether the transferring guarantee is necessary to formulate relevant laws.But in the end,most scholars in the academic circles thought that this system violated the statutory principle of real right and prevented it from being listed in the Property Law which was promulgated and implemented in 2007.The Fourth Plenary Session of the 18 th Party Congress in 2014 proposed to strengthen the construction of the market legal system and compile the civil code.This policy once again caused civil law scholars to explore the issue of transferring guarantee,with the promulgation and implementation of the “Provisions of the Supreme People’s Court on Several Issues Concerning the Application of Law in the Trial of Private Lending Cases”,the provisions of Article 24 provide a reference basis for the use of transferring guarantee.In the subsequent practice case,the validity of the guarantee is categorized as negative.However,transferring guarantee in different forms was wildly used in practice which was caused by the prosperity of the market economy,the need of financing channels for SMEs,etc.In an endless stream of practical cases,transferring guarantee not only remain in the current provisions of Article 24 of the judicial interpretation of private lending.Instead,it should seek a legal space for the development of the guarantee in the future at the legal level.Based on this consideration,I confirm and demonstrate the transferring guarantee from the following sections.The thesis was divided into three parts:The first part is the affirmation of the guarantee under the background of the compilation of the civil code.This part firstly points out that we should acknowledge the easing of the statutory principle of real rights and provide room for transferring guarantee.Secondly,it puts forward the social basis of the transferring guarantee and the affirmation of the transferring guarantee in the comparative law.Finally,it compares the difference between the guarantee and the chattel mortgage,the mortgage,and the retention of ownership guarantees the independent value of the transferring guarantee.The second part is about the theoretical disputes over the basic issues of guarantees under the background of the compilation of the Civil Code.This chapter mainly studies the four theoretical disputes that exist in the theoretical community: the definition of the concept,the choice of different legal constructs,the choice of the legislative model and the publicity dilemma.I believe that the concept of transferring guarantee in China should be a broad concept which includes post-assignment guarantees.The right to expect should be adopted in the constitution of the law.The legislative model should adopt the legislative model of property rights,distinguishing movable property,immovable property,and rights-assignment guarantees from the public notice and setting them separately.The third part is about the specific construction of transferring guarantee under the background of the compilation of civil code.I mainly demonstrate the specific setting of the transferring guarantee from the establishment,effectiveness and realization of the transferring guarantee.In the process of realizing the transferring guarantee,there will also be problems,for example,the guarantee excessively damages the interests of the debtor,and the credit loss of the transaction parties damages the interests of the other party.However,these risks are not uncontrollable.I believe that the compulsory liquidation obligation can be set to solve the problem.In this thesis,there are two main achievements in the research of the creative research of transferring guarantee.Firstly,on the premise of supporting the legislative model of the real right editor,the transferring guarantee is the expectant right from the theory of the legal constitution.Secondly,on the choice of legislative mode,the thesis puts forward an alternative channel and tries to find out a legislative space for the transferring guarantee.However,the content of the thesis still has some limitations.The theoretical research is not deep enough.It is expected that this thesis could be discussed together with all the related scholars,making the guarantee system perfect enough to meet the needs of the development of China’s market economy.