Legislative Choice Of Liquidity Clause In The Compilation Of China’s Civil Code

The liquidity clause is a way of realizing the security right agreed by the parties.If the debtor fails to repay the debt during the term,the creditor can directly obtain the ownership of the security based on the clause.China’s legislation holds a prohibition on this clause.With the development of the market economy,in order to circumvent the ban on liquidity,and seek more efficient and convenient forms of guarantees,atypical guarantees such as concession guarantees and debt-to-debt guarantees have gradually been derived,which can achieve the same effect as liquidity clauses.The "Minutes of the National Civil and Commercial Trial Work Conference"(hereinafter referred to as the "Minutes of the Conference")adopted on September 11,2019 has clearly recognized the effectiveness of some atypical guarantees,and the judicial practice before the release of the "Minutes of the Conference" In the case of atypical guarantees,they are usually recognized by the court.This has led to atypical guarantees whose liquidity clauses and their functions are close to achieve the same purpose,but they have been treated differently by legislation and the judiciary,resulting in a surge in the frequency of application of atypical guarantees,which has led to problems such as different judgments in the same case and the suspension of the liquidity ban.It can be seen that in the compilation of China’s "Civil Code",it is necessary to make new choices on the effectiveness of the liquidity clause.This article first selects several types of atypical guarantees that are similar in function to the liquidity clauses,compares them with the liquidity clauses,and analyzes the relationship between the causes of atypical guarantees and the liquidity clauses from the differences between the constituent elements and the judicial status.Lead to problems with the liquidity ban.The third chapter divides the provisions of the liquidity clause into the countries and regions of the civil law system and the countries of the Anglo-American legal system.The comparative law is used to study the path of liquidity ban in various countries and regions,which can provide reference for the legislative choice of the liquidity clause in China.The fourth chapter starts from the theory and practical value of the liquidity clause,and further analyzes and demonstrates thenecessity and rationality of liquidity lifting.Finally,it analyzes the relevant provisions of the liquidity clause in the "Civil Code of the People’s Republic of China(Draft)" published on December 16,2019,analyzes the pros and cons,and puts forward specific suggestions on the legislative choices for liquidity ban to try to form a unified Referee rules,improve the efficiency of typical guarantees,and promote the development of economic transactions.