| The liquidity pledge financing mode achieves a win-win situation for financial,commercial and logistics entities.During the period of liquidity pledge,the pledge is in a non-sealed and movable state.The pledgor can extract,replace and renew the old pledge in accordance with the agreed way,and continue to use the pledge for production and sale under restrictions.The supervisor is entrusted by the bank to possess and control the pledge on behalf of the bank,so as to assist the bank to effectively establish and maintain the pledge.With the development of business,the mode of liquid pledge financing causes conflicts of rights in practice,and there is a dilemma in the application of law in which judicial discretion is not uniform.The growing prominence of legal risks restricts the healthy development of the industry.Disputes in the case are mainly on the specific issues of the subject matter,whether the indirect possession establish pledge or not,the obligations of the supervisor and the scope of liability compensation.Particularization is a relative concept,as long as the pledge can be distinguished from other movable assets of the pledgor.Combining the list which is issued by supervisor with the supervisor actually controls,the pledge is clear and specific at all times and meets the requirements of the collateral.Secondly,demonstrate the rationality of establishing pledge in indirect possession.Bondsman make delivery,pledges take over possession.The traditional pledge is to impose a burden on the person through the simple retention of the object,and forces him to pay off the debt as soon as possible.The innovative design of the flow pledge is to consider not only the retention effect of the object,but also the value of the exchange value of the pledge.Therefore,the pledgor is allowed to production and management activities in restricted way,which increases the solvency of the pledgor.In essence,there is no detachment from the pledge,and there is no separation from the control and retention of the pledge.As a direct occupier,the supervisor obeys the pledgee,and the pledgee controls the pledge through the supervisor.In the self-employed mode of the supervisor,the supervisor is the direct possessor of the object,and the pledgee is the superior possessor,using the regulatory legal relationship to control the supervisor.The pledgee realizes the factual control of the object through direct possession,andplays a role of retention to guarantee the creditor’s rights.In the third-person warehouse model,the third person shares the subject matter with the supervisor.However,if the third person does not have a custody responsibility,the supervisor is the only direct possessor and the third person is simply a holder.In short,the intervention of the supervisor at least excludes the exclusive possession of the pledgor.In the same way,the biggest difference between the warehouse model and the possession change is that the pledgor is no longer an exclusive direct possessor.Regardless of the mode,the pledgor makes the delivery,the pledgee obtains the possession,and meets the legal requirements of the pledge.However,in practice,the supervisor does not conduct on-site supervision and only monitors it in writing,resulting in conflict of rights.The supervisor must be a direct possession,and pledgee should strictly controls regulator transfer his entrustment obligation to guarantee the secondary indirect occupant status.Finally,it analyzes the legal attributes of the regulatory contract,clarifies the general obligations of the supervisor in each mode,and responds to the differences in judicial practice in determining the supervisor’s responsibility.Regulatory contracts are principal-agent contracts,and regulatory obligations include,but are not limited to,simple custody and warehousing.In the warehouse of the pledgor and the warehouse of the third person,the custody obligation and the supervision obligation are separated,and any liability for damage caused by mismanagement has nothing to do with the supervisor.The supervisor is not the main debtor or the guarantor,and should not be liable for the joint debtor ’s liability.The supervisor shall bear the supplementary liability according to the fault,within the scope that the creditor cannot be compensated. |
