Research On Assignment Guarantee System In China

In 2002,when the property law of China was enacted,the academic circles discussed the issue of transfer guarantee becoming culture,but there was no relevant provisions on transfer guarantee system in the property law.Subsequently,the judicial interpretation of private lending was promulgated and implemented on September 1,2015.Article 24 of the provision provides a reference basis for the application of the transfer guarantee,but it does not solve all the problems brought by the transfer guarantee,and the provision only provides space for the existence of the transfer guarantee system.In the judicial practice,there are endless cases about the transfer guarantee.In order to solve the problem of different judgments in the same case,on November 14,2019,the Supreme People's court put forward the handling ideas about the transfer guarantee system cases by publishing the minutes of the national court's civil and commercial trial work meeting(Fa [2019] No.254)(hereinafter referred to as the nine civil minutes)The guarantee should not only stay here,but should seek the existence space in the legal level.This paper will study from these four parts.The first part is through the analysis of the current situation and the concept of the transfer guarantee,pointing out the different definition of the transfer guarantee system in the legal circle,clarifying the author's point of view,and affirming the necessity of the transfer guarantee system by elaborating the characteristics of the transfer guarantee itself.The second part introduces the necessity of China's transfer guarantee system,affirms that the transfer guarantee system conforms to the needs of contemporary economic development;in addition,in the judicial practice,the court's different understanding and different handling of the transfer guarantee cases lead to different judgments and confusion of judicial recognition.Although the nine people's minutes published the handling ideas of such cases,but its The nature is just minutes of meeting,which can't be cited as the law of court cases,so it's necessary for China to build the system of transfer guarantee.The third part mainly introduces the dilemma in theory that our country faces in the construction of the system of transfer guarantee,that is,the dilemma in the choice of legislative model,the dilemma in the nature of transfer guarantee and the dilemma in the publicity method.It also introduces the main views of different scholars in detail,and through the analysis of these views,finds out the path to adapt to the development of our country.The fourth part introduces the construction of the transfer guarantee system.Firstly,the paper clarifies the path choice of the construction of the transfer guarantee system in China,and puts forward the solutions to the above problems.Secondly,it puts forward its own legislative suggestions from several key issues of transfer guarantee.There are two main creative research results in this paper: first,in the detailed analysis of Article 71 of the nine people's minutes,the author points out the limitations of its application,and thinks that China's transfer security system still needs legal provisions,and according to the choice of its nature,he thinks that it should be stipulated in the title of real right.Second,the theory of legal constitution of assignment security should be the theory of expectant right.