Study On The System Of Liquid Contract Release

Capital In the civil law system of our country,the liquid clause has taken the attitude of absolute prohibition.However,from li civil chamber of the National People’s Congress in March 2018 of the civil code of the real right(indoor draft)"in article 191 and the license of liquid liquid clauses in chapter 18 taken,and in September 2018,the National People’s Congress li publish to the society of the civil code of the parts(draft)position is changed,switch to prohibit liquid,it can be seen that the legislature this attitude has the hesitation.Liquid the effectiveness of the clause is a controversial problem,countries or regions of the civil legislation attitude towards liquid clause is not the same,mainly Germany adopted a strict ban on socialist state of liquid contracts,France’s new revision of the "French civil code" article 2348 paragraph 1 of the pledge of chattel can set up the liquid contract.Article 2459 "It may be provided in a mortgage agreement that the creditor becomes the owner of the mortgaged real estate,provided that this provision has no effect on the real estate which is the principal residence of the debtor." It stipulates that liquid contract can also be established in the mortgage relationship.Some countries,represented by Japan and South Korea,generally adopt the position of prohibiting liquid contract,but in terms of commercial liquid,it is stipulated that the prohibition of liquid contract in civil field does not apply to commercial guarantee.The reasons for prohibiting liquid contract in China are as follows :(1)It is not conducive to protecting the interests of the mortgagor.(2)It may damage the interests of other creditors and the mortgagee due to the reduction of the debtor’s liable property.(3)The real and fair autonomy of will must be guaranteed through the system.(4)Mr.Xie Zaiquan from Taiwan also held that "the advance agreement that the real right of security is transferred to the security holder without any discount or change in price is inconsistent with the compensation of the change in price of the security right."(5)in the main body of the market economy,state-owned enterprises occupy a considerable proportion,with the state-owned.In view of the above reasons and combined with the theory of civil and commercial law,the author puts forward the following suggestions: in view of the different pursuit of values in civil and commercial fields,that is,in the civil field,if there is a conflict between many values of law,the law will first take care of fairness;But in business,if there is a conflict between the many values of the law,the law takes precedence over efficiency.Therefore,it is suggested that China draw lessons from the experience of Japan and South Korea to distinguish civil and commercial guarantees.After the author based on the relevant theoretical research of many scholars at home and abroad,can preliminarily that the commercial guarantee definition is as follows: "except as otherwise provided in laws,for-profit commercial guarantee refers to the business subject to provide guarantee,and general civil subject for-profit provide guarantee and provide basis for commercial contract guarantees."After defining the concept of commercial guarantee,an important proposition of China’s civil and commercial legislation is how to construct the commercial guarantee system under the integration of civil and commercial system.Japan and South Korea belong to countries with civil and commercial affairs separated,and they have sufficient legislative soil to distinguish civil guarantee from commercial guarantee.However,China belongs to a country with civil and commercial affairs integrated,and this legislative system will not change in the long term.In this case,the issue of how to design commercial guarantee in the legislative level has surfaced.According to the author,under the mode of civil and commercial relationship of form and essence separation,there are three modes to choose for the system design of commercial guarantee.One is to separate the guarantee system into separate sections in the civil code and stipulate civil guarantee and commercial guarantee in the section of guarantee.The second is to maintain the existing legal system and adopt the dispersive mode in the civil code,which stipulates the real right of commercial security in the category of real right and the commercial secured creditor’s right in the category of creditor’s right according to the traditional bipartite framework of property debt.Third,in addition to the Civil Code,a general rule of commercial law is formulated by extracting common factors,covering basic systems such as merchants,commercial acts and commercial registration,and stipulating the commercial guarantee system.