Research On The Legislation Of Pawning Right

Being a kind of traditional real right system,pawning right has rooted in China for thousands of years.Although pawning right plays as an important part in finance guarantees,as well as usage and income of real estate,it is not included in Real Rights Law which promulgated in 2007.Along with the deepening of Reform and Opening-up,as well as marketoriented economy,pawning right is showing potentiality especially in aspect of adjusting the real right relations.As a result,under the process of initial Civil Code making,whether pawning right should be included or not becomes as one of the controversies again.Legislation of pawning right will be discussed from five chapters and parts as below:The first part mainly focuses on background and significance of pawning right study,in which not only research status in domestic and foreign perspective,but also necessities and initial advices for pawning right legislation are introduced.The second part is about the definitions of pawning right in several angles.Firstly,features of pawning right are discussed via the comparison study with similar legal system in both domestic and foreign level.Secondly,three oriented theories on pawning right's nature,including usufruct right,guarantee right and specialty right,are also introduced.Based on the analysis,we think pawning right has a combination of usufruct right and guarantee function in nature.Thirdly,pawning right is given a clear definition,according to the refining and summarizing of its features and nature,as well as some scholars' points of view and legislation in Taiwan.The third part is aiming to introduce the developing process of pawning right.In this chapter,it is started with some general knowledge about pawning right's birth background,evolution process and prospects of its future development.And then,the legislation status and how it is existing for pawning right are discussed.In addition,although pawning right has not been included in current Real Rights Law,as a typical system,it had been modifying and perfecting in the thousands of years' developing process.What is more important,pawning right has been applied to local transactions practically in format of common law all along.The fourth part focuses on the difficulties and reasons behind in pawning right legislation.The difficulties mainly derive from three aspects,including controversy of existing and abolishing,unclear definitions of objects and lacking of effective regulations on the legal relationship in pawning right.So we think that inflexibility in legislation of Real Right Law and blind areas in pawning right understanding are key influencing factors.The fifth part puts particular emphasis on how to promote pawning right legislation in a practical approach.In this chapter,we firstly point out that pawning right should be included in law by analyzing the necessity and feasibility.As for the approach and pattern that we should obey,we think that adopting a method of combining common law and special law,and including it as a part of usufruct right under the Real Rights Law in Civil Code should be a good choice,considering the usufruct right nature for pawning right.At last,based on our analysis,advices on constructing detailed contents of pawning right system with Chinese characteristics are also suggested.In conclusion,pawning right is showing powerful vitality under the new situation of Reform and Opening-up.Due to the unique system design,as well as dual effects on finance guarantees,usage and income,pawning right can fill in gaps in usufruct right system of real estate.Having pawn included in Civil Code and utilizing its potential value,will be of benefit to perfect Real Rights Law system,to meet various social needs,and even to promote the economic development of market.