The Construction Of The Transferring Guarantee System In China

With the efficient operation of economy and society,the typical security interest can not meet the needs of people's financing and guarantee.As one of the atypical guarantees,transferring guarantee has an incomparable advantage in financing and security.Transferring guarantee has been widely applied in social practice and judicial practice,meeting the higher requirements of economic development for the mode of security.However,taking into account factors such as the legal principles of traditional civil law on property rights and the prohibition of fluid contracts,whether our country should construct the system of transferring guarantee,there is a lot of controversy in academic circles.This paper holds that the law should serve the practice,and should respond to the demand of the practice for transferring guarantee,but not for the deposit of the security of the assignment.In the theoretical dilemma,it is refused to recognize its validity.The conflict between the transferring guarantee and the legal principle of real right can be conciliated in theory by means of the law of rem;the issue of the conflict between the transferring guarantee and the prohibition of fluid quality contract.In the specific system design,it can also be avoided by establishing the liquidation obligation.The provisions of the Supreme people's Court on certain issues applicable to the law in handling private lending cases were issued,in which Article 24 stipulates,it is believed that the regulation on the guarantee of assignment has aroused the wider concern of the society.In view of this,this paper argues that the actual need for judicial interpretation of the attempt to force people to give security Rethinking the law.At this stage,the system of transferring guarantee has established its legal status for civil law countries in the form of doctrine and jurisprudence.However,considering that our country is not a case law country,in this paper,the author thinks that the system of transferring guarantee should be constructed by means of explicit legislation,and the system of transferring guarantee should be brought into the system of property law to make it and mortgage,pledge right.The lien is an important part of the security real right.On the basis of the security interest,the concrete content of the lien is established.This paper bases on the essence of the transferring guarantee as the security interest and takes into account the current legal system.It is considered that it is more appropriate to adjust it through the property law.From the establishment conditions,publicity methods,legal effectiveness,liquidation system to put forward the corresponding legislative recommendations.