Study On The Judicial Regulation Of The Effectiveness Of Assignment Guarantee

In the past 40 years of reform and development,China's economy has developed rapidly.In recent years,with the increasing prosperity of commercial activities,transfer guarantee has developed rapidly in social and economic life,and it has become a new type of guarantee that commercial subjects actively adopt.Assignment guarantee is a kind of right transfer guarantee.Because of its special form of guarantee,there has been a constant controversy in academic circles about its validity.When the Property Law was drafted,scholars discussed whether it should be legislated or not,but there has been no definite number.In commercial activities,transfer guarantee has been widely used because of its high efficiency and flexibility.Therefore,in the judicial practice,there are a lot of cases about the transfer guarantee,especially in the effective judgment of the validity of the transfer guarantee,there are completely opposite judgment results,which is a great test for the authority of the court's judgment.Although in 2015 the Supreme People's Court promulgated the Provisions of the Supreme People's Court on Several Questions of the Law Applicable to the Trial of Non-governmental Lending Cases(hereinafter referred to as' Interpretation of Non-governmental Lending'),which made certain judicial regulations on the contract named ‘buying and selling is actually lending',However,there is no mention of the validity of the transfer guarantee,especially for the validity of the sale contract,whether the transfer guarantee has the priority to be repaid or not is avoided.In this paper,the author starts from the definition and characteristics of the assignment guarantee,summarizes the different cases in the trial practice,and analyses the characteristics of foreign theories on the nature of the assignment guarantee.On the basis of affirming the theory of security right construction,this paper studies the effectiveness of transferring security,and puts forward some suggestions on judicial regulation of the effectiveness of transferring security injudicial practice.The courts of our country should affirm the effectiveness of transferring guarantee conditionally when hearing the case of transferring guarantee,and use the rules of liquidation and publicity to regulate the effectiveness of transferring guarantee.At the same time,it affirms the priority right to be repaid by transferring the guarantee.Especially in transferring the restrictive right of the security holder to the subject matter of the guarantee,we can draw on the relevant provisions of the nominal shareholders of the Company Law for judicial regulation.