Discussion On The Construction Of China’s Alienation Guarantee System

As an atypical security,alienation guarantee system differs from traditional real rights granted by way of security.As society and economy develop,there have been increasing problems to be solved by alienation guarantee system.Therefore,it is necessary to perfect the system in China.First,through comparing the alienation guarantee system with relevant systems,the paper analyzes the unique advantages and functions of the alienation guarantee system and demonstrates its irreplaceability by other systems and the necessity of its construction.Besides,this paper further argues that the alienation guarantee system does not violate the “the principle of legality of right in rem” and “prohibition of liquid clause and mortgage”,and there are no institutional barriers in establishing the alienation guarantee system in China.As for the nature of the alienation guarantee system,this paper holds that this system belongs to a system of real rights granted by way of security and should be regarded as a kind of culture and stipulated in the Civil Code of the People’s Republic of China · Property(hereinafter referred to as “Civil Code · Property ”).As for the publicity of the alienation guarantee system,by analyzing the publicity defects of the property alienation guarantee,this paper proposes that the legislation mode of registration antagonism should be adopted for the alienation guarantee system in China,and the publicity mode of alienation guarantee of creditor’s rights is designed.In view of the internal legal effects of the alienation guarantee system,the paper reflects that the scope of the subject matters of the alienation guarantee can be extended to the appendant and the accessory,and discusses the rights and obligations of the parties during debt performance,such as the obligation of the debtor to properly manage the subject matters,and the right of the creditor to be compensated preferentially with regard to subject matters.This paper advocates easing the application of liquidation-typed alienation guarantee on the basis of respecting the parties’ will;in terms of external legal effect,this paper argues that whether bona fide acquisition and registration antagonism are constituted shall be taken as the criterion to judge the legal effect conflict between the parties and the third party,and designs the specific rules to balance the legal effect conflicts between the parties and the third party.