The Judicial Recognition And Judgmental Methods Of Transferring Guarantee System

As China's economy is developing more and more quickly,the process of Reform and Opening is accelerating and economic activities are becoming more frequent,so people's financing needs are growing.Because the legislation has a certain lag,the legal system cannot fully meet the needs of practice,so a large number of atypical guarantee systems have been generated in the financing process.The transferring guarantee is widely used in practice as a representative of the atypical guarantee system,however,the judicial decision about transferring guarantee is extremely confusing because it is not clearly defined by law.So it is necessary to study the transferring guarantee.Besides the conclusion,this thesis consists of four parts.The first part raises an issue.This part makes a brief introduction of a case and the court's verdict of the case to show that judges feel confused about transferring guarantee in the judicial practice.And then the author writes the specific questions which will be discuss in this paper later.The study method of this paper is cases statistics and special case study,and author make a brief analysis about the whole data.The second part is the judicial recognition of transferring guarantee.There have three opinions about the judicial recognition.Some judges believe that transferring guarantee has two elements.And some judges believe that transferring guarantee has two elements.The most judges believe that transferring guarantee has three elements.Based on the analysis of case statistics,author believes transferring guarantee has three elements: the first element is the existence of creditor-debt relationship,the second element is the purpose of transferring guarantee is to guarantee the settlement of the debt,the third element is the means of transferring guarantee is transfer of rights.The third part is the judgmental methods of transferring guarantee.In judicial practice,the transferring guarantee contracts always include liquidity clause,when deal with this kind contracts,judges always feel confused about how to recognize the validity of this kind contracts.So this part aims to distinguish transferring guarantee from liquidity clause.And in this part,author talks about the liquidation obligation of creditors,and the obligation can avoid invalidation of transferring guarantee because the obligation will make transferring guarantee avoid the application of liquidity clause.The fourth part distinguishes transferring guarantee from other legal concepts.Besides the confusion with liquidity clause,transferring guarantee is similar to post-transferring guarantee and the pay a debt in a kind and so on.The biggest difference between transferring guarantee and pay a debt in a kind is the purpose,the purpose of transferring guarantee is to guarantee the debt,but pay a debt in a kind is to make sure the debt be paid.The difference between transferring guarantee and the post transferring guarantee is that the transferring time,transferring time in transferring guarantee is before the claim expired but the transferring time in post transferring guarantee is after the claim expired.