Research On The Effectiveness Of Responsibility Transfer

In the current legislation,there is no clear stipulation on the effect of the transfer repledge with responsibility.Paragraph 2 of article 94,the Judicial Interpretation of the Supreme People's Court on Some Issues Regarding the Application of Security Law of the People's Republic of China,states that,during the term of pledge,without the pledgor's consent,the pledgee makes security on the pledged property to a third party to secure the pledgee's debt shall be invalid.The pledgee shall bear liability for damage caused by repledge.The stipulation makes clear that the transfer repledge with responsibility is invalid.However,article 217 of the Property Law of the People's Republic of China,in case a pledgee transfers the pledge within the duration of the right of pledge without consent of the pledger,and thus causes the destroy or loss of the pledge,he shall be liable for making compensations to the pledger.It only stipulates the liability for compensation in the transfer repledge with responsibility,but does not specify the effect of it.In addition,the legislative affairs committee of the standing committee of the National People's Congress made the interpretation of "Neither advocating,nor prohibiting",which led to great controversy on the determination of the validity of the transfer of responsibility in judicial practice.The reason for the dispute is the different understanding of article 217 of the property law.One understanding is that this provision,like the second paragraph of article 94 of the judicial interpretation of the security law,means the transfer repledge with responsibility is invalidity.The other understanding is to combine the interpretation of the legislature,the transfer repledge with responsibility is validity.Under the current legal system,there are sufficient and justifiable reasons to recognize the validity of the transfer repledge with responsibility.First of all,modern life has a great demand for cash flow,and value selection has changed from order to efficiency.Under the responsibility to pledge system,it can better meet the needs of financial financing and make the best use of it.Secondly,compared with the second paragraph of article 94 of the judicial interpretation of the security law,article 217 of the property law removes the stipulation that the transfer repledge with responsibility is invalid,and retains the stipulation of the liability for compensation in the transfer repledge with responsibility.Combined with the interpretation of relevant departments,it is explained that the transfer repledge with responsibility is recognized,so the principle of legal property right is not violated.Finally,the inherent constitution of the transfer repledge with responsibility can balance the interests of all parties.Strict constitutive requirements and legal effects can well balance the interests of all parties.For example,the pledgor can exclude the pledge of liability by agreement,and the strict pledge of liability can prevent the pledgee from abusing his/her rights.Therefore,the transfer repledge with responsibility can be effectively identified.