Research On The Pledge System Of Asset Income Right

The right holder generally uses the asset income right as a pledge guarantee.However,because China's property law has contradictions on the scope of the subject matter of the right pledge,and there is a rigid understanding about the legal principle of property rights in the theoretical and judicial practice.The current laws and regulations and judicial interpretations do not clearly stipulate the nature of "rights of asset income." and whether it can be used as a pledge property.Therefore,in the judicial practice,the judge can not judge whether the asset income right can be used as a statutory collateral,and whether the asset income right pledge dispute can be applied to the relevant provisions of the property law.In the end,judges usually use the relevant provisions of the contract law to decide the dispute.But this kind of treatment can not fundamentally solve a series of problems of the pledge of the asset income right.In addition,there are also conflicts between the property law and other departmental laws in the establishment of the right pledge and the transfer of pledge property.Based on this,this paper intends to interpret the existing laws and regulations from the nature of asset income right,combine the existing theories at home and abroad,and the current laws and administrative regulations on property rights guarantees in China,so as to define the nature of asset income right.On this basis,the paper analyzes and interprets the related problems of the pledge of asset income right,and provides certain theoretical support and practical operation suggestions for the guarantee of asset income right.This paper can be divided into four parts.The first part is the practical investigation and theoretical interpretation of the pledge of asset income right.The asset income right means the right to obtain the income of the asset.According to different types of basic assets,the asset income right can be divided into two categories—public infrastructure assets income right and rights assets asset income right.The asset income right first appeared in the loan financing activities of public infrastructure construction.The government encouraged the public infrastructure construction unit to use the charging right to pledge the loan in the form of policy documents.After that,the Supreme People's Court guaranteed the charging right in the form of judicial interpretation.It provides a legal basis.However,it does not define the legal nature of the right to charge.The theoretical community also has three different views on the nature of the right to return assets: the future claims,the accounts receivable and the usufructuary rights.The author disagrees with the above three views.In the author's point of view,the asset income right is similar to the equity and intellectual property rights,and is a property right that is independent of the existing material and debt binary system.The second part is a comparative study on the legality of the pledge of the assets of the extraterritorial legal system.Mainly selected from the United States,Britain,Germany and Japan.The US movable property trading system reflects Llewellyn's legal pragmatism,paying more attention to the substance of the transaction,and the establishment of the pledge guarantee has nothing to do with the assignee's assumption of risk,besides that the use of accounts receivable for pledge guarantees is legal.Judging from the application of rules,it is legal to use future accounts receivable for loan guarantees in the United States,and the scope of future accounts receivable is broader than the concept of “asset income right” in this paper.The legal basis of the pledge of the UK's asset income right is also based on the characteristics of pragmatism.As long as it is property-oriented,whether it is tangible property or intangible property,it is transferable,which is also in line with the British concept of relaxing the guarantee loan for intangible assets to promote social and economic development.Judging from the application of the rules,the UK debt collection account is synonymous with China's accounts receivable,and can also be an asset income right,used as a pledge guarantee.The pledge agreement is legal and valid,and the pledgee has absolute control over the pledge.The legal basis for the pledge of German property rights is based on the concept of freedom of contract and the principle of rights,and will recognize the legitimacy of the transfer of rights.Pledge is set according to the basic principles of the rights they embody,and is compatible with the economy based on money and credit.From the point of view of the application of the rules,in Germany,the future creditor's rights can also be used as the pledge guarantee,and the pledge agreement does not violate the provisions of the German civil law and will not invalidate the guarantee contract.The legal basis of pledge of Japanese asset income right is based on the essential attribute of pledge,in other words,based on the identity and transferability of rights and movable property,real estate,the essence of pledge is embodied in the direct and exclusive control of a particular relationship in some form.In the nature of the exchange value,the legality of the pledge of the asset income right is recognized.Judging from the application of rules,in Japan,accounts receivable(future claims)are feasible both for secured loans and for debt transfer and debt repayment,and have been supported by the Supreme Court in judicial practice.The legal basis and norms of the pledge of asset income right of the above countries provide a very good reference and basic function for the discussion of the pledge of China's asset income right.The third part combs and expounds the problems existing in the pledge of asset income right.The problems faced by the pledge of asset income right are mainly embodied in the validity of the pledge contract,the transfer of the pledged property and the risk of derogatory value of the pledged property.The validity of the quality contract is mainly manifested in: the principle and spiritual contradiction between the provisions of the property law,and the conflict between the 5th article of the property Law and the 52 nd article of the contract law in theory and practice.The transfer of pledged property is mainly manifested as: there is a conflict between the provisions on the establishment of qualitative rights between property law,Bill law and other relevant laws and regulations,and the transfer effect of pledged property cannot be effectively guaranteed.The risk of derogatory value of pledged property is mainly manifested as: the derogatory value of pledged property is faced with the risk that the pledge holder can realize the guarantee creditor's right,and the risk of property loss brought by the value derogatory to the quality person.The forth part discusses the path of the pledge of the right of return of assets in a deep way.Aiming at the validity of the quality contract appearing in the pledge process,the solution path provided in this paper is: to eliminate the non-coordination of the real right law system itself,to unify the scope of the collateral,to adhere to the spirit of autonomy of private law,and to maintain the consistency of the law order between the property law and other departmental laws.In view of the problem of pledge property transfer,the solution path is: eliminating the conflict of pledge establishment,unification of the legal norms for the establishment of pledge rights of assets,strengthening the effectiveness of publicity,and establishing an effective system for the transfer of pledges.With regard to the risk of derogatory value of pledged property,the solution path is to set up the prudential examination system of pledge property and the third party supervision system,strengthen the protection of the rights and interests of the pledge property,set up the system of locking measures and asset value report disclosure,and strengthen the protection of the rights of the pledgor.