On The Construction Of Assignment Guarantee System In China

The assignment guarantee has not been included in the scope of legislation because of the violation of the principle of real right and the prohibition of liquid contract.However,in recent years,the various types of cases based on the assignment guarantee have mushroomed in the public's view,which makes the theoretical and practical circles have to re-examine the assignment guarantee.The need of reality,the support of the theory,and the irreplaceable advantage of the institution of assignment guarantee provide the reasonable premise for the construction of assignment guarantee system in China.When constructing specific system,the establishment,effectiveness and publicity of assignment guarantee should be clarified.The article consists of three parts: introduction,body and conclusion:The introduction mainly introduces the research background,research significance,research methods and the innovation and shortage of the article.By sorting out and summarizing the research status of assignment guarantee at home and abroad,the paper sums up the dilemma and the way out of constructing assignment guarantee system in China.The main body consists of four parts:The first part is the general theoretical problem of assignment guarantee.Assignment guarantee means that the debtor or a third party establishes a guarantee for the creditor based on the ownership of the subject matter.If the debt can be paid off on time,the debtor can regain the ownership of the subject matter.The scope of subject matter of assignment guarantee is extensive,adopting the way of transferring ownership to establish is the biggest difference between it and typical guarantee,so it is classified into the category of atypical guarantee.At present,the main viewpoints of the legal constitution theory of assignment guarantee include: the constitution theory of ownership,the constitution theory of security right and the expectation right.The theory of ownership constitution ignores the essential feature of "guarantee",and it is easy for the creditor to arbitrarily dispose of the subject matter of guarantee,which is not conducive to protecting the legal rights and interests of the debtor.The theory ofright of expectancy makes it more difficult to clarify the complicated issues and increases the difficulty of legislation.By contrast,the constitution of guarantee right not only focuses on the essence of guarantee,but also has less conflict with the current legal system and legal system.On the premise of solving the problem of publicity,it can give full play to the advantages of transferring guarantee.Therefore,our country assignment guarantee should adopt the constitution of guarantee right.The second part analyzes the rationality of constructing assignment guarantee system in China.First of all,the market demand,the lack of legislation,the inconsistency of the judgment is the realistic basis for constructing the assignment guarantee.In social practice,there are more and more disputes about the type of assignment guarantee,but the imperfect legislation on assignment guarantee in China leads to the failure of the courts at all levels to form a unified judgment,and a fault has appeared between the actual needs and the construction of the system.Secondly,the doctrine of real right detente and the determination of liquidation obligation are the theoretical support for China to construct the assignment guarantee system.The conflict between assignment and guarantee and the principle of real right can be coordinated theoretically by the theory of real right mitigation.The conflict between the assignment and guarantee and the prohibition of liquid contract can be avoided by establishing the liquidation obligation in the specific system design.Finally,compared with the existing chattel mortgage,mortgage and ownership retention systems in China,the transfer guarantee is more widely applicable and has incomparable advantages and irreplaceable important functions.The third part tries to draw inspiration from the legal experience of other countries and regions.On the question of legal constitution,the author draws lessons from the theory of Japanese security right constitution.In the determination of the scope of the subject matter,reference to the Japanese practice of real estate included;In the choice of legislative mode,based on the current situation of legislation in China,we can learn from the German legislative mode of systematization.We can also absorb the outstanding achievements of Germany and Japan on the establishment and publicity of assignment guarantee.The fourth part is the concrete construction of China's assignment guarantee system.First of all,in terms of the legislative mode selection of assignment guarantee,this paper jumps out of the inertia thinking of the two legislative modes of civil code and special law,USES the "system regulation" mode of Germany for reference,and puts assignment guarantee in the whole civil and commercial law system for adjustment.For example,in the general rules of the basic law of civil and commercial law,the principle of numerous clauses is lightened.Improving the relevant content of the contract law will regulate the problems in the guarantee contract.Secondly,when constructing the specific contents of the assignment guarantee,the establishment conditions should include the assignment guarantee contract,the parties,the subject matter and the scope of application.In the effectiveness of the assignment guarantee,the rights and obligations between the parties to the assignment guarantee and between the parties to the assignment guarantee and the third party shall be clarified;In the publicity of assignment guarantee,the emphasis is on the publicity of assignment guarantee of movable property,and registration is regarded as the publicity means of non-possessive transfer assignment guarantee.The conclusion part is a summary of the main points of the paper.The purpose of the paper is to provide ideas for the construction of China's assignment guarantee system,so that the advantages of assignment guarantee can be given full play to promote economic development.