Research On Transfer Guarantee System

Since the rapid development of social economy in our country,there are numerous cases related to the assignment of security.the Supreme People’s Court published the "nine minutes of the people" at the end of 2019,which provides the court with the judgment ideas for the trial of transfer guarantee related cases.However,its nature is the minutes of the meeting,which can not be used as the legal reference of the court’s judgment cases,and can not be summarized It is very general.In the second sentence of the first paragraph of article 388 of the civil code,it is mentioned that guarantee contract includes mortgage contract,pledge contract and other contracts with guarantee function,which expands the scope of guarantee contract.On this basis,Article 68 of the interpretation on the application of the guarantee system of the civil code of the people’s Republic of China(hereinafter referred to as the interpretation of the guarantee system of the civil code)also makes general provisions on the assignment guarantee.Firstly,this paper expounds and analyzes the concept and characteristics of transferable guarantee and concludes that the nature of transferable guarantee is the expectant right of the nature of real right。Secondly,it analyzes the necessity of establishing the transfer guarantee system in our country.Chinese courts at all levels have different judicial understandings when adjudicating cases related to assignment of guaranty,which will damage the judicial credibility in the long run.Compared with other systems in our country,transfer guarantee has some differences and irreplaceable advantages.Moreover,Assurance system is the inevitable outcome of sustainable development of economy and society.However,there are two dilemmas to stipulate the system of assignment and guarantee.One is the choice of legislative mode,which analyzes the legislative mode of real right,creditor’s right and special law respectively.The other is the method of publicization of transfer guarantee.There are some disputes about the publicization method of chattel transfer guarantee,real property transfer guarantee and right transfer guarantee.Therefore,China should study other countries or re gions and get enlightenment from them when perfecting the transfer guarantee system.For example,by referring to the legislative ideas of Germany,It can make the guarantee way of transfer guarantee system more perfect in our country,and also can draw lessons from Japan to bring real property into the object scope of transfer guarantee system.On the issue of publicity,we can also absorb the excellent achievements of Germany and Japan.Finally,it discusses the perfecting of transfer guarantee system in China.Finally,it discusses the construction of the transfer guarantee system in China.For the choice of legislative mode,the legislative mode of real right classification is more in line with the legal system of our country and the nature of transfer and guarantee.On the issue of the publicity of the transfer guarantee system,this paper resolves the publicity of the guarantee of the transfer of chattel,analyzes the way of the registration as the non-transfer possession transfer guarantee,and determines the guarantee of the transfer of real property and the guarantee of the transfer of right.In the construction of the concrete content of the transfer guarantee,the subject and object of the transfer guarantee system and the guarantee contract are specified.After classifying the effectiveness of the assignable guarantee,it is necessary to clarify the rights and obligations of the debtor and the creditor internally,and the rights and obligations of the guarantor,the right holder and the third party externally.Finally,by comparing the transfer guarantee system with other guarantee systems,this paper analyzes the realization degree of transfer guarantee in China.By learning from the speeches of other countries and regions,It can give full play to the function of the guarantee system of our country,perfect the guarantee system of our country and promote the sustainable development of our country’s economy.