Research On The System Of False Registration Guarantee In Korea

In recent years,with the rapid development of China' s economy,a new type of guarantee,namely,sale-type guarantee contract,has emerged.However,China's existing legal provisions and academic views are unable to fundamentally and effectively solve the relevant problems of the sale type guarantee contract.Although article 24 of the provisions of the supreme people's court on several issues concerning the application of law in the trial of folk lending cases in China stipulates the procedural treatment methods for the sale type guarantee contract,it does not clearly stipulate the nature,effectiveness and whether the sale type guarantee contract has the priority to be compensated.Academicallly,although the four viewpoints of assignment guarantee,real estate mortgage,conditional release and datio in solutum appointment are put forward,they all have certain defects.Above all,give with assure and buy and sell assure set assure with the way that transfers droit,but its transfer time is disparate.Although some scholars put forward the concept of "post-assignment guarantee" according to the different time of transfer of ownership between the two parties,the sale-purchase guarantee contract cannot directly transfer the ownership of the subject matter,while the assignment guarantee is to directly obtain the ownership or other rights of the subject matter.Therefore,whether the transfer of security contract to explain the sale of security contract approach to be considered.Secondly,the purpose of the sale type guarantee contract is to guarantee the real property,but this guarantee is not the real property mortgage,the two have essential difference,the sale type guarantee is the guarantee set according to the parties' agreement,and the real property mortgage is the legal security right in China.Thirdly,a conditional juristic act refers to a future event agreed by the parties.In the sale type guarantee contract,when the party signs the sale contract,the sale contract has already become effective namely.Therefore,the conditional juristic act is not appropriate to explain the sale type guarantee contract.Finally,when the parties agree not to perform the debt in advance,offsetting the debt with collateral is in line with the datio in solutum appointment,but there is the suspicion of violating the prohibition of liquid terms.According to the research and analysis,South Korea through the development of "false registration security law" to solve such problems,this paper comprehensively discusses the false registration security system and related cases;Focuses on analyzing the false registration security right with liquid ban terms in our country,seeks the false representation,mortgage and behavior of advance notice registration and similar system,and get the following conclusions:first,the essence of the liquid is prohibited clause is immediately apparent ownership,but false registration guarantee on the liquidation procedure must go through the legal right of ownership cannot be directly obtained.Secondly,the establishment of collusive false representation requires that the expresser and the counterpart actively hope that the actual effect of the act of representation will not occur,while in the false registration guarantee,the attitude of the party concerned is a laissez-faire attitude rather than a positive hope that the actual effect of the act of representation will not occur.Again,hypothec is legal typical assure real right,and false register assures right is the atypical assure that forms according to the agreement of party,and adjust by special law.Finally,the nature of advance notice registration is the property right of creditor's rights,and the security right of false registration is the property right of special security.Therefore,Korea's false registration guarantee system is not in conflict with China's current relevant systems and behavior,in China has a certain feasibility.China should learn from Korea' s false registration guarantee system,make up for the defects in our country' s judicial system in dealing with sales type guarantee contract,and finally promote the harmonious development of social economy.