Study On The Legal Guarantee Of Applicability Of Alienation Guarantee System

In the past 40 years of reform and opening up,China has achieved remarkable achievements.The socialist market economy has developed rapidly and gradually.This is not only manifested in its vitality,but also in the perfection and enrichment of its credit infrastructure.Driven by the great force of economic demand,the guarantee means that embodies social credit are widely used,and their scope of application is constantly expanding,and the the forms of guarantee are increasingly diversified.As far as the typical guarantee method is concerned,the typical security method established by the current property law of our country is only mortgage,pledge and lien.Because of their nature,they are subject to many restrictions of the property law,and their application in practice is not satisfactory.In order to broaden the financing channels and solve the difficulties of financing difficulties for market entities(especially small and medium-sized enterprises),some atypical forms of guarantee with unique advantages and charm have gradually formed along with long-term trading practices and have been widely recognized and accepted.Due to its efficiency,convenience and concealment,the"alienation guarantee system"has shown strong vitality,which is a new type of financing guarantee method that arises from the contradiction between high financing demand and tight credit policies.In the field of civil and commercial affairs,there are a lot of acts of establishing guarantee by"alienation guarantee system",but the system has great controversy in theory.Although this guarantee method has been approved repeatedly in several drafts during the drafting process of China's "Property Law",the"Property Law"that was finally promulgated and implemented did not include it.Therefore,the system has already been finalized on the legislative level,but the academic and practical circles have not stopped the discussion and research on the"alienation guarantee system."The reason is that the in-depth study of the system has great theoretical significance and practical value.In view of the above,the author tries to expound the relevant concepts of the"alienation guarantee system"through comparative research and value analysis,and analyzes the applicability of the system in the light of typical cases that appear in judicial practice.This paper is divided into three parts:introduction,text and conclusion.The body of the paper is divided into four parts:The first part expounds the basic category of the alienation guarantee system.This paper expounds that the alienation guarantee system is an atypical guarantee system that originated from Roman law and Germanic law,and analyzes the development of the alienation guarantee system in China.In addition,this part also compares the definition of the concept of alienation guarantee system in different countries and regions,and believes that the definition of alienation guarantee system should include the two elements of transfer of rights and compulsory liquidation;Finally,it discusses the value and significance of the alienation guarantee system to make up for the defects of the movable property and to expand the financing channel.The second part introduces the present situation and existing problems of the system of security in civil justice in China.It also analyzes the validity and judicial attitude of the agreement on the guarantee of the purchase and sale contract,and states that after the promulgation of the"Provisions of the Supreme People's Court on Certain Issues Concerning the Application of the Law in the Trial of Private Lending Cases"(hereinafter referred to as the"Judicial Interpretation of Private Lending"),The judicial circles tend to unify the various aspects of the agreement on the guarantee of the contract of sale and purchase,but the scope of application of the Judicial Interpretation of Private Loan has its limitations.Therefore,it is necessary to legislate on the alienation guarantee system to respond to the needs of reality;Finally,this part analyzes the conflict between the alienation guarantee system and the existing"Property Law" in China,and studies the specific case to find a coordinated method.The third part examines the application of the extraterritorial alienation guarantee system.It mainly expounds the development and status of the alienation guarantee system in different countries and regions from the development experience,legal structure and judicial application of the alienation guarantee system;Then it analyzes the application of the alienation guarantee system between different countries and regions,and points out its enlightenment to China.The fourth part discusses the independence and the legislative guarantee of the applicability of the security system.By comparing with the typical and atypical guarantee methods existing at the present stage,this paper analyzes the independence of the alienation guarantee system and shows the irreplaceability of it;Then,this part also introduces the academic circles on the alienation guarantee system of the legislative regulation of several models,the analysis of the advantages of the systematic model and the shortcomings of other models;Finally,this part puts forward some suggestions on the construction of alienation guarantee system under the systematic mode.