The Theory Of Lifting A Ban On Fluidity Contract

Since Roman law,the ban on fluidity contract become a tradition in the civil law countries,but fluidity contract is usually allowed in common law countries.As the change of external environment,banned on fluidity contract showed many disadvantages.The countries which is the ban on fluidity contract turned to laissez-faire or permission,so the free on fluidity contract will become a trend.In our country is used for the fluidity contract has absolute ban on legislative model and faced with a conflict with pawn system in our country exists in the legislation.what’s more,the guarantee way is single and inefficient.At the same time,in judicial practice,the terms of fluidity are generally considered to be invalid compared with the transferring guarantee and sale based on debt-for-goods assignment,which leads to different judgments of the same case in judicial practice.Lifted contract will bring many advantages such as respect with the freedom,promote guarantee form,diversified realize creditor’s rights,embodies fair principle of civil law.so that our country should be lifted fluidity contract,laissez-faire liquid contract choice of the mode of legislation,and introduced the related legal system and the supporting,such as fluidity contract invalid lawsuit foreclosure system in order to demonstrate the problem,this article structure will be divided into the following five parts:The first part reflects on the contract of prohibition of fluidity.Based on the analysis of the current situation of legislation and academic views under the system of prohibition of fluidity in China,and the legislative arrangement of the contract of prohibition of fluidity in foreign countries,this paper enumerates the rationality and limitations of the contract of prohibition of fluidity,and concludes that although there is rationality in the contract of prohibition of fluidity,the disadvantages of prohibition of fluidity are greater than the advantages,so it is necessary to eliminate the contract of prohibition of fluidity.The second part is to explain the advantages of the contract,mainly from respect for the expression of will of both sides,improve the efficiency of the realization of creditor’s rights,protect the principle of fairness,promote atypical guarantee,avoid legislative conflicts,and make different judgments on the same case,so as to draw the conclusion that the contract is indeed necessary and can solve the problems facing our country in many ways.The third part shows the successful experience or advantages that can be used for reference in the aspects of legislation,judicial practice,psychological expectation of the parties and preparation of the theoretical circle.Furthermore,the conclusion is that the contract can be lifted because it has successful experience in legislation,judicature and theory,and it will not face huge resistance in the process of implementation.The fourth part is about the choice of our legislative model after the contract of removing the prohibited liquid.By listing and analyzing the current situation of legislation choice after the release of foreign ban and the theoretical conception of the contract in the academic circles of our country,it is concluded that China should turn to the laissez faire of the contract rather than the licensing of the contract.The fifth part provides two feasible relief programs for the debtor and the third party who may suffer serious interests damage,namely,the system of the right of redemption and the lawsuit of the invalidity of the pledge contract.At the same time,it also made the path arrangement for the liquid contract,and tried out the liquid contract in some areas,providing experience for the nationwide promotion.