Study On Judicial Application Of Assignment Guarantee System

With the continuous deepening of China's reform and opening up and the rapid development of the market economy,more and more enterprises want to meet the development needs of enterprises through financing.Assignment guarantees first appeared in countries such as Germany and Japan,and later in China.The property that was guaranteed could only be real property,and movable property and rights were subsequently added.At present,there is a large dispute on the transfer of guarantee.Although there is such a guarantee in practice,there are no relevant provisions in China's law.Therefore,in practice,courts in various regions of China have decided to grant a guarantee.At the same time,each case has its own judgment,which has great differences,which has caused relevant disputes and contradictions in society.There is no legal requirement that cannot meet the needs of social life.Therefore,this article conducts a systematic and in-depth study of the transfer guarantee system,with a view to solving the existing legal vacancy problem.Based on the current situation of the judicial practice in the operation of the assignment guarantee system in China,this paper makes an in-depth study of the typical judgment documents of the people's courts in various regions,analyzes the problems in the judicial practice of the assignment guarantee in China comprehensively and carefully,and puts forward corresponding theoretical Suggestions and legislative countermeasures.Specifically,this paper is divided into the following five parts:The first part introduces the background and research significance of this paper,sorts out the relevant research literature at home and abroad,and points out the research methods and innovation of this paper.The second part of the guarantee system of summary of judicial application,first has carried on the definition to guarantee,including the concept,characteristics,such as guarantee of academic circles about the author analyses the nature of the guarantee theory and put forward their own views,and then summarizes the superiority of guarantee system,summarized this paper introduces the general situation of our country judicial guarantee applicable,pointed out our country judicial practice are mainly real estate,movablepropertyand equity guarantee three types.In the third part,the characteristics and existing problems of the judicial application of assignment security in China are analyzed by statistical analysis and case study of the selected typical cases,and the differences in judgment results of the court in the validity determination of assignment security agreement,the priority right of creditor to be compensated,and the choice of liquidation method are summarized and analyzed.On this basis,it points out that there are some problems in the judicial application of assignment guarantee in our country,such as the inconsistency of the rules for determining the effectiveness of assignment guarantee agreement,the imperfection of the publicity system and the imperfection of the realization system.The fourth part is the suggestion of perfecting the judicial application of assignment security in China.First,it focuses on the suggestion of perfecting the rule of determining the effectiveness of assignment security agreement,including how to solve the conflict between assignment security and the principle of real right,the conflict with the prohibition of liquid substance,and the conflict with the false expression of intention.Secondly,on the improvement of the realization system of assignment guarantee,it is suggested that the creditor should be given the obligation of compulsory liquidation to prevent the occurrence of profiteering.The priority that receives right of compensation to assign guarantee,should specific case specific analysis,the circumstance that considers announcement and other hypothec synthetically tries to decide.Under the premise of safeguarding the free will of the parties,the justice of the case is realized to the maximum extent.