On The Construction Of Post-alienation Guarantee System In China

In recent years,there is the way of guarantee in the judicial practice:the parties conclude a sales contract in the debtor all things as the folk loan contract guarantees,including buying and selling contract,when the debtor is unable to repay the debt,the creditor shall have the right to demand that the debtor perform business contract,creditors to obtain the ownership of the business contract subject matter.This type of guarantee is widely known as the post-concessional guarantee.But due to guarantee method is novel,has long been academia about whether admit that this type of guarantee controversy remains fierce,not form a point of view,and due to the lack of regulation,commenting on judicial practice also appeared to guarantee the security problems of effectiveness,which show that after the guarantee is still lack of the regulation on the legal system.The supreme people's court on some issues of applicable law in private lending cases provisions stipulated in article 24:"the parties to sign the sales contract as the folk loan contract guarantees,loan expires the borrower cannot reimbursement,lenders request to perform the sales contract,the people's court shall,in accordance with the folk lending legal relationship,and cohabitancy modify claims to the party concerned."If the party concerned refuses to make the change,the people's court shall order the suit to be dismissed." This is the regulation of post-alienation guarantee in China,but it is not perfect.By studying this new type of guarantee,this paper attempts to make an institutional framework for the recognition standard,effectiveness and realization mode of the post-concessional guarantee.In order to achieve the above objectives,this paper studies the post alienation guarantee from four aspects:firstly,it defines the concept,nature and system positioning of post alienation guarantee,clarifies the relationship between post alienation guarantee and other forms of guarantee,and lays a foundation for future research.Secondly,the paper studies the legal principle of real right,the publicity of real right and the behavior of escaping from law,which are closely related to the post assignment and guarantee,and draws a preliminary conclusion to clear the institutional obstacles for the post assignment and guarantee.Thirdly,it draws lessons from the overseas legal system similar to the post-assignment guarantee.It mainly focuses on the false registration guarantee of Japan and South Korea and the guaranteed land debt of Germany.It introduces the solutions to similar problems faced by overseas countries,and makes theoretical reserves for the construction of the post-assignment guarantee system.At last,the author tries to put forward some suggestions from the angle of the guarantee itself and the relevant supporting system.