On The Effectiveness Of Dynamic Pledge And Its Rights Conflict

Dynamic pledge is a form of chattel financing guarantee in which the debtor or a third party guarantees the creditor's rights and applies to the creditor for loan with all the inventory goods as the subject matter.The creditor entrusts the third party enterprise to possess and supervise the pledged property,which can be replaced within the agreed scope.As the main means to solve the financing difficulties of small and medium-sized enterprises in the new era,dynamic pledge plays an important role in the field of dynamic financing guarantee.However,due to the lack of legislation,there are different views on whether dynamic pledge has legal effect in theory and practice.In case of rights conflict,whether dynamic pledge can resist other real rights is also controversial.In this paper,the legal effect of dynamic pledge is taken as the analysis subject,combined with theoretical theories and specific cases,in order to provide some answers to the above questions.The first part puts forward the dilemma of the legal effect of dynamic pledge and the conflict of rights.The second part is about the basic theory of dynamic pledge and the current situation of extraterritorial legislation.The third part is the real right law interpretation of the dynamic pledge effect.The dynamic pledge does not contradict the basic principles of the real right law and has provided the space for the interpretation of the dynamic pledge on the premise that the law recognizes the floating mortgage.By expanding the interpretation method,delivery is not limited to actual delivery.The way of establishing pledge right by dynamic pledge conforms to the legal effective requirements,and the effectiveness of pledge right should be recognized.The fourth part is the influence of supervisors on the effectiveness of dynamic pledge.The validity and existence of the dynamic pledge right also depend on the actual performance of the supervision agreement by the supervisor,and at the same time ensure that the pledge right can survive and have antagonistic effect.The fifth part is mainly about the conflict between the effectiveness of dynamic pledge and other rights.The characteristics of dynamic pledge make the pledgee in indirect possession of the pledge.Therefore,in practice,dynamic pledge on the same property is very easy to compete with other real rights.In principle,according to Article 415 of the Civil Code(Draft III Review),the order of repayment can be established by the time of public announcement.The sixth part is the affirmation and perfection of the legal effect of the dynamic pledge.The legal effect of the dynamic pledge should be recognized.It is suggested to add the content of "when the pledge value is above the agreed minimum value line,the pledgor can replace and withdraw the pledged property without affecting the effectiveness of the establishment and existence of the pledge" after the provision of article 429 on the establishment of the pledge right of movable property in the Property Code of the People's Republic of China(Draft III Review).