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Research On The Legal Nature Of Assignment Guarantee

Posted on:2021-06-29Degree:MasterType:Thesis
Country:ChinaCandidate:P JiangFull Text:PDF
Abstract/Summary:PDF Full Text Request
Assignment guarantee means that the debtor transfers the ownership of the guaranteed subject matter to the creditor as promised.If the debt is realized before the expiration of the loan contract performance period,the ownership of the subject matter is returned to the original owner of the subject matter,namely the debtor or a third party.When the debt is not settled,the security right holder,ie,the creditor,is a form of security in which priority is paid within the scope of principal and interest for the change in the value of the security.Due to its advantages such as simple operation and high financing efficiency,the transfer guarantee is used by more and more enterprises and individuals,and it has greatly promoted the prosperity and development of the market economy.However,compared with its widespread application,Chinese law has not made any provisions on transfer guarantees,so in practice there will be many insurmountable problems,such as the uncertain legal nature of transfer guarantees and the resulting adjudication issues.Therefore,the author thinks that strengthening the research on transfer guarantee has very important theoretical and practical significance.This article analyzes and discusses the legal issues related to the transfer guarantee through five parts of analysis,and proposes solutions to the dilemma such as the violation of the legal principles of real rights and conflicts with liquidity contracts in theory and practice.First of all,based on the introduction of the widespread use of transfer guarantees in China,the relevant views of scholars Yang Lixin and Xie Zaiquan were analyzed,and the concept of transfer guarantees,relevant legal norms,and legal composition were systematically sorted out.The legal nature of the transfer guarantee is analyzed,and it is clear that the transfer guarantee is an atypical guarantee.The author believes that the transfer guarantee is different from the existing typical guarantee in terms of collateral and pledge.Conditional sales contracts have their unique position in law and have complementary advantages in function with typical guarantees.By introducing the problems of the transfer of guarantees in violation of the legal principle of real rights and the breach of liquidity contracts,the author believes that the dilemma faced by transfer guarantees can be overcome through system design and different interpretation methods.In the end,this article considers that it is extremely necessary and practicable for the transfer guarantee and its related systems to be stipulated in China's civil legal norms.The focus and difficulty of this article is to put forward their views on the academics in the academic field about the controversy over the guarantee system and the confusion of judicial decisions in practice.For example,Han Han strongly opposed the stipulation of the transfer guarantee system in the Civil Code.He believed that the transfer guarantee system and the movable property mortgage system were overlapping in terms of the establishment of functions.Although Yao Hui acknowledged the independence of the transfer guarantee system,but because of the transfer guarantee system,Due to the property rights,the existing creditor's rights should be stipulated in the form of special law.Of course,it also includes the legal dilemma in the case of "Zhu Junfang Case" and "Jiamei Real Estate and Yang Weipeng Loan Case".
Keywords/Search Tags:assignment guarantee, Atypical guarantee, Real rights for security
PDF Full Text Request
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