Reflection And Reconstruction Of The Rules Of Fluid Quality Prohibition In China

Although our country explicitly forbids the application of the flow clause,however,in the judicial practice,the flow clause agreement still emerges endlessly,even there is the fluid quality agreement which is independent of the security real right.In some of the more typical security relationships,it may be agreed between the parties that if the agreed liquidation period expires but the debtor fails to pay the debt in a timely manner,The purpose of debt settlement can be achieved by giving the creditor ownership of the subject matter.Although some of these agreements are not made under the condition of the existence of a secured real right on the subject matter,in practice,there will still be a number of courts based on the property Law.Article186 of the article nullifies the validity of the agreement between the parties.In the concrete case adjudication process of China's courts,there are still great differences on whether the validity of the flowing clause agreement is valid or not.In this paper,the author compares the attitudes of the courts at all levels in determining whether the validity of the streaming clause is valid or not,and the validity of the fluid clause agreed upon in the real right of security through the adjudication document net.Most courts usually determine whether or not they are valid according to the relevant provisions of the property Act;Most of the courts have recognized the validity of the assignment and security in the assignment-security relationship;however,the question of the effectiveness of the liquidity clause will continue to be based on the relevant rules in the property Law The agreement of the parties shall be determined to be null and void;With regard to the agreement between the two parties in the property settlement agreement,most courts have basically affirmed the validity of the agreement.However,some courts consider the agreement between the parties to pay off the debt by transferring the ownership of the subject matter as a flowing clause;In recent years,most of the courts in the form of sale and purchase contracts to guarantee lending agreement that it belongs to the liquidity clause,the main reason for the formation of this finding is that the main reason for this is that: The court held that the real expression of intention at the time of the conclusion of the sale contract between the parties was to provide security for the performance of the obligation,However,the agreed provisions which can directly transfer the ownership of the subject matter are obviously inconsistent with the provisions in the relevant laws of our country which are invalid.The author thinks that on the one hand,the provisions of the law of our country concerning the invalidity of the flowing quality clause violate the autonomy of the parties.On the other hand,it is also unreasonable that there is no other burden of rights on the security property or that the parties have agreed on the liquidation clause in the flowing clause,and it is also unreasonable to conclude that it belongs to the flowing clause and that it is invalid.The parties may choose other similar contract terms to circumvent the invalidity of the liquidity clause in order to safeguard their legitimate rights and interests without prejudice to the convenience of the transaction,but also due to the absence of legal provisions.It will also cause so many difficulties in court trial that it will appear In many cases with different sentences,this hinders the preservation of the authority of the law.Therefore,under certain conditions,the validity of the flow clause agreed between the parties should be confirmed,which must be considered in the future legislative process of our country.In the guarantee relation of property,both the property Law and the guarantee Law of our country have clearly made the provisions of the prohibition of flowing property.However,in practice,the contract of fluid quality still appears frequently.In addition,there are also separate from the security property rights outside the flow of qualitative agreement.In a typical guarantee relationship,such as the assignment and guarantee,the payment of goods or the guarantee loan in the contract of sale and purchase,the parties agree to transfer the ownership of the subject matter to achieve the purpose of liquidating the debt if they fail to pay the money on time due.Although these agreements are not the premise of the existence of a secured real right on the subject matter,in practice,there are many courts under the property Law.The provisions on invalidity of the flow clause deny the validity of the agreement between the parties.