Study On The Codification Of Assignment Guarantee System

As a guarantee to the development of society and the guarantee system of a kind of typical,in the most representative countries of two law systems have been acknowledged,such as the civil law of Germany,Japan,on behalf of the state on behalf of the state of Anglo-American law system of the United States,Britain,are recognized by means of case or the legislative status of the system.But whether to introduce the system is still controversial in China.Although the summary of the civil and commercial judicial work meeting of the national courts promulgated by the supreme people's court(hereinafter referred to as the summary of the nine people's court)makes special provisions on the atypical guarantee issues involved in guarantee dispute cases,article 71 is too general about the assignment guarantee system.The civil code(draft)also does not include the assignment guarantee,but the system has been accepted by the community in practice.This paper holds that the conveyance guarantee system does not conflict with the liquid clauses in China's property law,and conforms to the mandatory provisions of the law and the principle of contract freedom.This paper analyzes the evolevment of court judgment in judicial practice and recognizes the effectiveness of the assignment guarantee system.The analysis of the assignment guarantee can be a theoretical breakthrough and innovation for the real right of security to enter the civil code,which does not violate the liquid contract and conforms to the real right relief system.Compared with traditional guarantee,the scope of the subject matter of transfer guarantee is more extensive,including movable property,real estate and property rights,etc.as well as the advantages of convenient procedures and low transaction costs.The unique social value and extensive application in practice also provide the foundation for the admission of the guarantee into the civil code from the real life.Make up in response to guarantee real right set in the scope of the subject matter of movable and immovable property as well as part of the property rights,and will guarantee the right type of restrictions on the ownership,publicity system corresponding to corresponding to different subject matter,the real estate on the basis of general regulation to register the mortgaged property,movable property to register with possession,property rightsare listed on the basis of the specific property transfer as well as to guarantee in implementation...