Research On The System Of Commercial Security Under The Background Of Civil Code

Analysing the security system of China,and it can be found that the rules on security in the "Security Law" and "Real Right Law",which are the civil basic law in China,are not very operational and cannot adapt to the development of security practice in the field of market transactions.This has led to the emergence of a large number of operational departmental administrative regulations,such as the "Interim Measures for Risk Management of SME Financing Institutions","Trial Measures for the Management of Personal Housing Guarantee Loans of the People's Bank of China",and "Trial Measures for Tax Guarantees",which led to the contradiction and non-uniformity of the rules applicable to the security law.Judging from the status quo of China's legislation,there is no commercial code in the process of codification of the Civil Code.The security activities are mainly based on the Security Law",the "Real Right Law" and other specifications related to security scattered in the single-line regulations.Since China's security legislation has long been based on civil activities,the commercial guarantee system has not been confirmed in the law,and the existing theory also has little research on the commercial security system.Under the background of Civil Code,constructing a commercial securities system is an opportunity as well as a challenge.The premise of constructing a commercial securities system requires a clear concept of it.This paper analyses from the perspective of the concept of commercial behaviour,combined with foreign legislation,the concept definition of commercial security under the three paths of subjectivism,objectivism and eclecticism is discussed,and the definition of the scope of commercial security is further analysed.As a country under the civil law system,China constructs a property law system based on the dichotomy of property debt.Our commercial securities system can also follow the logic of dichotomy of property debt.And commercial securities can be divided into commercial securities of real right nature and that of obligation nature.And the typical types of the former include commercial mortgage,commercial pledge,commercial lien and atypical securities,the typical of the latter include commercial guarantees and independent guarantees.Now we have the definition of commercial securities,then the next issue is to build the system.This paper firstly analyses the provisions in China's current law and the draft Civil Code relating to the commercial securities system,then from the perspectives of the applicable areas of security,the validity of security contracts,the qualifications of security subjects,the specific security system,and the security responsibility,China's law adopts a unified regulation attitude towards civil and commercial securities,which reflects the standard dilemma of commercial security under the current law.Although China's laws actually contain a considerable number of commercial securities system groups,there are still practical dilemmas where specific provisions are insufficient and urgently needs improvements.In additions,commercial securities have different views from civil securities,break through the subordinate attributes and object specific characteristics of traditional civil guarantees,and break through the legal principals of real rights.Therefore,commercial securities have its independent value.In addition,this paper also analyses from the perspective of the historical evolution of the securities system.It can be seen that commercial securities have gradually become the trend and have played an increasingly important role in economic activities.Establishing a commercial securities system is not only a wise option to follow the trend,but also has an independent value that is different from civil securities.Under the background of the integration of civil and commercial laws in our country,we should try our best to regulate the civil securities and commercial securities differently so as to achieve a unified regulatory structure with a substantive distinction.It is the most ideal choice to set up an independent chapter about securities in the civil code.However,the current draft of the civil code is not stipulated.It can only be hoped that it will be completed in the process of future revision of the civil code.At the same time,the draft civil code did not carry out drastic reforms to the securities system,only minor amendments.Although there is no systematic commercial securities system in the current legislation,there are still opportunities in the context of the legislative upsurge of the General Principals of Commercial Affairs.It can be said that it is a realistic choice to formulate general commercial rules and stipulate the commercial security system in the commercial general rules and commercial single law.On the premise of improving the current commercial securities regulations and making up for the omission of legislation,it is a wise choice to introduce atypical guarantee systems that are widely used in practice.