On The Lifting Of The Ban On Liquidity Clauses

As a way to realize the real right of guarantee in the future agreed upon by the parties when establishing the guarantee,when the creditor's right and debt are due and the debtor is unable to pay off the debt,the creditor can directly obtain the ownership of the guarantee based on the agreement of the guarantee contract without going through the liquidation procedure.This system is of great significance for the rapid financing of the current market economy,but it is expressly prohibited by Chinese legislation.In practice,in order to achieve the effect of liquid terms,many forms of guarantee have emerged to avoid this ban.This kind of conflict between legislation prohibition and practical needs leads to different judgment positions in judicial trials,resulting in different judgments of the same case.At the same time,the boundary between the liquid clause and the relevant system is blurred and the ban of the liquid clause is suspended.In fact,the root cause of this problem lies in the fact that the prohibition of liquid terms in the legislation cannot meet the needs of current social development.Based on this,the legislation should solve ban on liquid terms,from the perspective on the basis of value judgment,mainly around the protection of the rights and interests of the debtor,creditors' rights and interests protection,the ownership of real rights for security value and the realization of the real rights for security of four aspects proposed ban on reason,and with the demand of judicial practice on liquid clause,the requirements of the standard and perfect and pawn system three aspects of the need of the real rights for security system,analysis the necessity of the ban on liquid terms.In fact,China's current social environment and living conditions,the terms of the liquid on the terms of fluids in foreign countries is also different degree of loosening,combined with the existing theory and the judicial practice,can using the model of the release of laissez-faire,so there are conducive to the common development of both civil and commercial,in conclusion,the liquid of the release of the terms is completely feasible.It has to be admitted that the efficient and convenient advantages of the fluency clause system itself also have negative effects,such as unable to guarantee the fairness of the results,it is easy to become a new means of circumvention,especially when the subject matter is a restricted transfer.In addition,it may damage the rights and interests of unspecified third parties.However,these negative effects can be revised through the design of legislation,and the fairness of the results can be guaranteed by giving the third party the right to cancel,and the scope of application of the fluid clause can be restricted to avoid restricting the circulation of the transferable goods.The application of registration antagonism to movable and immovable property enables a third party to have a clear understanding of the situation of the collateral through the registration book and to avoid damage to his rights and interests.