The Rule Construction Of The Judgment Of New Type Of Atypical Guarantee

During the process of codification of China's civil code,the guarantee system has not changed substantially,but the draft civil code comes with some new guarantee rules,which can also play a certain role in promoting the development of guarantees.The new type of atypical guarantee is a guarantee that has emerged and is commonly used in society in recent years in addition to typical guarantees(mortgage rights,pledges,liens,guarantees)and traditional atypical guarantees(title retention,pawns,transfer guarantees).The way.The dispute over new-type atypical guarantees in practice is due to the failure to establish relevant rules for new-type atypical guarantees,resulting in inconsistent judicial determination in judicial practice.The problems that arise are how to determine the nature and effectiveness of contracts and guarantees.Judicial recognition of the effectiveness of guarantees,and how to construct publicity,effectiveness,and implementation rules to conduct in-depth research on new types of atypical guarantees.In addition to the introduction and conclusion,this article divides the article into three parts:The first part first defines the basic meaning of the new type of atypical guarantee as: the difference between the typical guarantee and the traditional atypical guarantee,the most common new forms of guarantee that have arisen in recent economic activities.The author analyzes the existence of three new types of atypical guarantees in the practice of sale and purchase guarantees,lease guarantees(asset and guarantee asset transfer repatriation agreements),and financial lease repurchase contracts,and proposes the effectiveness of the contract in practice.Issues,the effectiveness of guarantees,and the lack of corresponding publicity,effectiveness,implementation rules and other common issues;the author further analyzes the theoretical disputes of the existence of new atypical guarantees and determines the legal positioning of the new atypical guarantees as a form of guarantee.Finally,based on the above analysis,the author discusses the necessity of a new type of atypical guarantee.In the second part,the author demonstrates in detail the validity of the new type of atypical guarantee contract and the judicial determination of the effectiveness of the guarantee.For a contract involving a new type of atypical guarantee,if there is no invalidity stipulated by law,we should recognize that the contract is valid and clarify its basis: The author believes that the referee cannot express the truth by intent or violate the provisions of the legal convection guarantee clause 3.The contract is invalid if it does not conform to the form stipulated in the contract.The judicial confirmation part of the effectiveness of guarantees discusses that the change of property rights is not of course effective,but under the framework of relevant rules,the priority of the effectiveness of compensation should be recognized to reflect the principle of the best use of properties.In the third part,the author constructs the corresponding rules of the new type of atypical guarantee as the supporting rules of the guarantee.The first is the publicity rules,and the most desirable is to establish a unified electronic publicity system.Before this system is established,"notarization + logo" can be used as a transitional means to serve as the publicity rules for new types of atypical guarantees.Second,the guarantee law The relationship between the rights and obligations of the guarantor and the guarantor emphasizes the maintenance of the subject matter of the guarantee and the rights enjoyed by both parties in the realization of the right of the guaranty;finally,it is recommended to clarify the scope and amount of the guarantee of the new type of atypical guarantee,with additional liquidation procedures As a restriction on the implementation of new atypical guarantees.