Study On Legal Issues Of Transferring Guarantee

According to the 41 typical cases of transferring guarantee conducted by the SupremePeople's Court and the Higher Peopl's Court in recent years,this thesis is mainly to study legal issues of transferring guarantee.The text consists of introduction,the main part and conclusion.The Introduction mainly introduces the reasons,meaning,thought and ways of the analysis of transferring guarantee in this paper.The main part of the text starts from the following four aspects.Part one: finding out problems from judicial judgments,and concluding the pointed issues of transferring guarantee,finally to get the exactly core research contents of this thesis:concept disputes,validity disputes and construction of transferring guarantee system in our country.Part two: classifying and analyzing the views about concept of transferring guarantee,in the light of academic study and judicial judgment,and then to bring out the study range of this thesis.The arguments on academic study focus on whether transferring guarantee only means the guarantee form that the whole right transferring to creditor or includes other situations? Is it a transferring behavior based on trust? The judicial debates focus on the relationship between a transferring guarantee and a guarantee form that signs a commodity trading contract.Are they the same concept in essence or having totally different meaning?Considering transferring property right of the subject when signing a master contract,a creditor can stand against the third party with his ownership,to achieve prior compensation.In this way,the creditor's guarantee works.This thesis will focus on transferring guarantee in a narrow sense: to transfer the subject property right to a creditor when signing a commodity trading contract.Part three: classifying and analyzing the views about validity of transferring guarantee,in the perspective of academic study and judicial judgment,and then to come to the conclusion of this thesis.The theoretical reasons for negating the validity of transferring guarantees are: violation of Numerus Clauses in Property Law;leading to profiteering easily,which is similar to fluidity in disguise;violation of the principle of fairness and so on.The theoretical reasons for affirming the validity of transferring guarantees are: no conflict thelegal principles of Property Law,parties' real intent and so on.Main reasons for judgment about denying and supporting transferring guarantees are basically the same as reasons in academia.When it comes to the discussion about the validity of real right for security of transferring guarantee,namely,the validity of priority of compensation,the author thinks that it should be recognized in general.Part four: on the basis of the empirical analysis,the author submits proposals about construction of Legal System of Transferring Guarantee in our country.The problems of framework should be considered firstly.According to the nature of "guarantee," China's transferring guarantee system should be established under the framework of property rights legislation,and like collateral and pledge,should be classified into real right for security.Secondly,the issue of public summons.The guarantee of non-transfer possession of movable property should be "established in writing and registered against doctrine".The public notice of the right of alienation guarantee can refer to the right of pledge in Property Law.Finally,regarding the issue of debt repayment,it is more appropriate to "give priority to fairness and give consideration to benefits",that is,when creditors perform the obligation of compulsory liquidation,we must fully respect their agreements of the parties.The conclusion part summarizes the core viewpoint of the thesis.