Study On The System Of Transferring Guarantee

The transferring guarantee originated from the "trust" system of ancient Roman law and ancient Germanic law has been controversial since its birth,and has therefore become an important atypical guarantee system for academic and judicial practice.The transferring guarantee is the most important feature of the transfer of property rights guarantee debts.In practice,ownership transfer is the norm.the rapid development of the social market economy has made the requirements of SMEs more and more urgent.The transferring guarantee that were widely used in civil law countries such as Germany and Japan have also appeared frequently.In the judicial practice of our country,and began to change from the original single real estate transfer guarantee type to the right transfer guarantee type.However,due to the large theoretical controversy and the lack of relevant legislation,the judgments of the courts in various jurisdictions in China have a large difference in the judgment results.Any law,any system,will ultimately be tested by practice.Therefore,this paper focuses on the core of the current judicial guarantee status in China,and first discusses the basic institutional content of the guarantee,namely from the Roman law and the Germanic law.This paper examines the origin of the guarantee system,then clarifies its concept,characteristics and value,and discusses the development of the guarantee in China in recent years.This paper selects 95 cases of high court judgments,summarizes the main points of the referee and analyzes the specific application areas of the guarantee.Finally,it puts forward that the concept of China's grant guarantee in the judicial practice is unclear,the nature is not uniform,and the effectiveness is inconsistent.If the publicity system is incomplete,it is necessary to completely solve these problems and only pass legislation.The guarantee provisions are placed in the Property Law,after the mortgage and pledge,and before the lien,some of the key provisions are designed and the legislative reasons are briefly explained.The article is divided into five parts:The first part: the origin and connotation of the guarantee.It discusses the origin of the guarantee under the Roman law and the Germanic law and discusses the development of the guarantee in our country.Then the concept,characteristics and existence value of the guarantee system are clarified.Defining the legal nature of the guarantee as a “security right” is more in line with the evolution of the guarantee of the object,and more clearly reflects the actual purpose of the party when registering the public notice,and by enforcing the creditor's mandatory liquidation obligation when the security right is realized.Can achieve fairness.The second part: the judicial application of the guarantee of guarantee in China.The sample of 95 high court cases selected shows that there are mainly two types of cases in the judicial practice: real estate transfer guarantee and equity transfer guarantee.In the same type of case,the court has different judgments on whether the guarantee contract is valid and its reasons,whether the creditor has the priority to receive compensation,whether it has the property rights,and the choice of liquidation method.The third part: the problems of China's guarantee and guarantee.On the basis of the previous analysis,it focuses on the problems of the guarantee in the judicial practice: in the concept of understanding,the concept of the guarantee itself is unclear,and the guarantee and mortgage,the credit guarantee and The pledge of creditorship is confusing;in the definition of nature,there are two different judgments that make the guarantee belong to the debt and the guarantee;in the determination of the effectiveness,there are also two watersheds in the case of whether the guarantee is in violation of the equity or the violation of the liquidity prohibition.The attitude of opposing referees;the publicity system is incomplete,such as the public notice of housing registration and housing registration and other public notices.The fourth part: is the suggestion of perfecting our country's transferring guarantee.The suggestions are divided into theoretical suggestions and legislative suggestions on the transfer guarantee system.The theoretical suggestions include the establishment,implementation,elimination,publicity and legal effect of the transfer guarantee.As long as the property satisfying "transferability and sex" can be used as the subject matter of security for transference,the liquidation method can be agreed upon by the parties concerned,and the attribution liquidation can be applied in the absence of agreement.In order to solve the problems in practice,it is necessary to adopt legislation to regulate and design the transfer guarantee in the Property Law.The fifth part: conclusion.Although the transfer guarantee violates the legal suspicion of real right,it will continue to exist in the field of financing guarantee with its incomparable advantages of flexibility,low cost and high efficiency.At the same time,due to the limitation of research samples,the research on equity transfer guarantee is slightly inadequate,which will be the focus of future research.