Research On The Perfection Of Trading-based Guarantee

Trading-based guarantee is a new trading model rising in the field of folk loan.Trading-based guarantee doesn't exist in the typical guarantee system and can't be interpreted into any typical guarantee.When disputes arise in practice,there is no directly applicable legal basis in judging relevant cases.In 2015.Supreme People's Court issued "provisions of the Supreme People's Courts on Certain Issues Applicable to the Law in the Trial of Private Loan Cases",article 24 aims to solve the legal application confusion but it put more emphasis on how to solve the specific suit,rather than solve the problem.The shortage of this article reflects in the later judicial practice,that different sentences in the same case still abound.Therefore,it is necessary to study the trading-based guarantee system and analyze its development path,so as to give full play to the value of this atypical guarantee and adapt to the needs of economic developmentIn addition to the introduction and conclusion,this paper mainly includes five parts:The first part begins with the introduction and analysis of three cases.First,three cases with different judgment contents in different periods are introduced.Case 1 and case 2 occurred before the promulgation of Applicable to the Law in the Trial of Private Loan Cases,and there was no clear legal basis to follow.Case 3 occurred after the promulgation of Applicable to the Law in the Trial of Private Loan Cases.At this time,24 articles have stipulated the mode of trial of such behavior.By analysing these cases and summarizing the judicial practice,it is considered that the current system of trading-based guarantee can no longer match its value and play a role,so it needs to be perfected.The second part is the general introduction on trading-based guarantee.First,the paper abstract this trading mode and get to know the concept and characters of the trading-based guarantee and classify the existing situation into different kinds.Then analysis the nature of trading-based guarantee,summarize various theories,rebut the opposite views,and finally come to a conclusion that trading-based guarantee is a kind of guarantee that can perfect current guarantee system,have value independent of the typical guarantee and is necessary to confirm its status in law.The third part focuses on the unique value of trading-based guarantee.On the one hand,trading-based guarantee can alleviate the contradiction between financing demand and financing policy and meet the demand for guarantee in the development of private lending market.On the other hand,the trading-based guarantee can make up for the defects of the existing guarantee,which can not only expand the boundary set by the security right,but also accept more forms of things as the guarantee of the creditor's and debtor's relationship between the two parties.It can also enrich the realization of security right and break the single realization mode of security right.The unique value of trading-based guarantee is the reason why it is accepted and developed by the market.Also,this is the basis for its further improvement.The fourth part focuses on the analysis of the application of the trading-based guarantee system.First,trading-based guarantee is in confusion in the judicial practice,its effectiveness has not been agreed.Many sentences seek the flaw of declaration of intention or breach of liquid to deny the vadility of the contract,or state that it is in conflict with principle of legality of right in rem or to lack the necessary public means,as a result,trading-based guarantee dose not being recognised.Second,the judicial interpretation of private lending itself is illogical and weak,unable to provide sufficient support for the trial of cases.Moreover,its effectiveness level also determines that it has no ability to create guarantee and cannot provide the best system guarantee for the trading-based guarantee.It can be seen that the rules accumulated in practice and the contents stipulated in the current norms of the trading-based guarantee system have been too limited to be applied and need to be improved.The fifth part is the assumption of the perfection of trading-based guarantee.First,the paper analyse the necessity of perfect trading-based guarantee.First it demonstrates that the perfection is the logical result of applying the principle of autonomy of will.Second,from the point of view of practical needs,trading-based guarantee has been in a state of confusion in the judicial application because of the lack of clear legislative provisions.Third,from the point of view of the current guarantee system itself,trading-based guarantee can supplemente it rather than simply repeated the same items.Therefore,it is necessary to perfect the system of trading-based guarantee to solve the problems in practice.It is better to legislate in the compilation of real rights,so as to make it consistent with the civil law.The concrete legislative thinking is to coordinate with the general principles of Civil Law,to stipulate the content of the statutory mitigation of real right in the real right compilation,and to stipulate the liquidation obligation and the means of publicity to play a role with trading-based guarantee.Compared with the previous research,this paper not only focuses on the comparison and analysis of various viewpoints in theory,but also learns the status quo and existing problems of practical treatment from the judgment,trying to approach the essence of trading-based guarantee.At last,the paper puts forward the concrete path to perfect the trading-based guarantee,hoping to realize the maximization of the value of the system.