Empirical Study On The Validity Of Alienation Guarantee

Alienation guarantee is an untypical guarantee that is formed in practice.It is a guaranty style which refers to the debtor or the third party gives the right of subject matter to the creditor in order to guarantee the debtor's debts.The right of subject matter,after satisfaction of the debts,shall be returned to the debtor by the creditor.If not,the creditor can enjoy priority for repayment by dispose the subject matter.There are two types of attitudes towards alienation guarantee in the judicatory practice of our country.They are approval and denial,which lead to different results of judgments and rulings.In existing cases,the judicatory practice of our country approves the Alienation guarantee for it claims that the Alienation guarantee reveals true intentions of the party.As is known to all,autonomy is a basic principle of Civil Law.So,it should approve the alienation guarantee which was established by the party.While it denies Alienation guarantee for three reasons: first of all,it involves or belongs to false acts.Secondly,it violates the prohibition rule of the fluidity contract.Last but not least,it violates Numerus Clausus Principle.Although the logic structure of alienation guarantee often involves a false act for there is a sales contract but no sales,people claim that this is determined by the special structure of itself,and its real purpose is to set up a guarantee,not a false act.Alienation guarantee does not necessarily infringe the rights and interests of the creator,and it has liquidation obligation,which does not violate the essence of “the prohibition rule of the fluidity contract”.And the attitude of approving alienation guarantee meets the requirements of the principle of good faith and can guarantee the autonomy of both parties.Alienation guarantee does not completely violate the essence of Numerus Clausus Principle.Namely,it is negotiable for Numerus Clausus Principle to recognize the effect of Alienation guarantee with a conciliatory perspective.Alienation guarantee is the true intention of the party so that it should be protected by law.The effectiveness of recognizing the Alienation Guarantee can balance the rights and obligations of both parties.All in all,Judicial practice should have a positive leading attitudetowards the validity of alienation guarantee.