Study On The Effect Of Assignment Guarantee

Assignment guarantee has the advantages of alleviating the financing difficulties of SMEs,diversifying the rights available for guarantee,is a convenient implementation method.It has been increasingly applied in judicial practice.However,since its inception,the transfer guarantee has been dubbed as the "illegitimate child in the transaction",and its effectiveness has not been recognized by China’s judicial practice,resulting in the confusion in the judicial determination.In the process of drafting the Property Law,whether to include the system of assignment and guarantee in the Property Law is very controversial.The conveyance guarantee system appeared in the Property Law(draft),but it was too controversial to be deleted in the final Property Law.On August 20,2020,the Supreme People’s Court issued the Provisions on Several Issues Concerning the Application of Law to the Trial of Private Lending Dispute Cases,in which the provisions in Article 24 are considered to be about the assignment of guarantee.However,due to the contradictions in the Provisions on Several Issues of the Applicable Law for the Trial of Private Lend Dispute Cases,the validity of the assignment guarantee is not clearly determined,which affects the determination of the validity of the assignment guarantee in judicial practice.On December 23,2019,the Supreme People’s Court issued the Minutes of the National Civil and Commercial Trial Work Conference(hereinafter referred to as the Nine People’s Minutes)with a positive response to the validity of the transfer guarantee for the first time.Most scholars in the academic world also believe that the Nine People’s Minutes can provide a unified idea for future adjudication.However,the Supreme People’s Court held that the Jiu Min Ji was neither a law nor a judicial interpretation,but only a meeting minutes,which could only be quoted in the reasoning of the judgment,and its provisions on the assignment and guarantee could not play a role in settling disputes in judicial practice.The Civil Code of the People’s Republic of China,which came into effect on January 1,2021,does not stipulate that assignable security is an independent real right of security,and only includes "other contracts with security functions" in Article 388.This regulation aims to expand the scope of guarantee contract,but in judicial practice,there is still no clear stipulation on how to identify the validity of transfer guarantee.Similarly,in the interpretation of the Supreme People’s Court on the application of the relevant security system of the Civil Code of the People’s Republic of China implemented on January 1,2021,it is stipulated that the people’s court should recognize the effectiveness of atypical security and recognize the priority right of compensation of the real right in atypical security that has been made it public.However,in the specific judicial practice,the dispute over the effectiveness of transfer guarantee is still not over.There are different views in the academic circles on whether to include transfer guarantee in "other contracts with guarantee function" in the Civil Code and the Judicial Interpretation,and there is still no clear conclusion about the effectiveness of transfer guarantee.Based on the existing laws and judicial interpretations,there is no unified opinion on the identification of the validity of the assignment guarantee.This paper will demonstrate the validity of transfer guarantee through three parts.Firstly,in the first part,it will analyze the problems existing in the identification of the validity of the assignment guarantee.And then in the second part analyzed the formative characteristics of guarantee in accordance with the contract,will be qualitative guarantee for creditor’s rights guarantee,from the perspective of the contract,the validity of the guarantee.In the third part,the reasons for the invalidity of the transfer guarantee will be refuted and the validity of the transfer guarantee will be analyzed.