Empirical Research On Lex Commissoria

The Guarantee Law and the Property Law have established a ban on lex commissoria,which have also been retained in the Draft Civil Law.As the frequency of private lending and transactions in modern society,the guarantee mode of debt also become more diversified.Firstly,the article analyzes the application of the prohibition lex commissoria in typical guarantee,alienation guarantee,datio in solutum,buying back.The court will determine the effect of lex commissoria from the point of view of legislative purpose,whether to liquidate or damage the debtor's interests,etc.The prohibition of the lex commissoria is to implementation of the principle of fairness in civil law and protect the interests of guarantors,but there will be disadvantages such as sometimes violating the meaning of the parties,the difficulty of realizing the guarantee real right,and the disunity of the civil and commercial system,so the scope of application of the prohibition of fluid provisions should be limited,and it also cannot directly deny its legally force.If the parties agree before the expiry of the period of performance,the debtor expires and does not pay off the debt,then the specific matter is owned by the creditor,and does not attach the liquidation obligation,that is achieve the same effect of lex commissoria.But the court should determine the validity of the provision from legislative purpose,the actual performance of contract,and the analysis of whether it damages the interests of the debtor or other creditors.Finally,it returns to the trial practice.Alienation guarantee is also a kind of guarantee system.The court should admit the legally force and add the compulsory liquidation obligation.Datio in solutum is a paid contract and plays a guarantee function,should respect the party meaning the compulsory liquidation obligation should be imposed on parties.The buying back of the third party shall be heard by relationship of the sales contract,so it does not apply the prohibition of fluid.Sale guarantee private lending contract with the complex relationship and cases needs specific analysis to confirm the legally force.