Practical Investigation And System Construction Of The Transfer Guarantee System

At present,the ways of guarantee in our country mainly include mortgage right,pledge right and lien.These ways of guarantee cannot fully realize the usufruct rights of the collateral while realizing the secured creditor's rights,which is undoubtedly a kind of restriction to the increasingly frequent economic activities.Because of the characteristics of no need to transfer the subject matter,the assignment guarantee system does not affect the guarantor's use of the collateral while guaranteeing the creditor's rights,so it is widely applied in practice.There are relevant judicial precedents in Germany,Japan and Taiwan of China.The application of this guarantee method in real life should not be ignored in judicial adjudication whether we think it should be incorporated into law or advocated to be adjusted by customary law.At present,the primary problem is to regulate the settlement and publicity of the assignment guarantee,so as to provide a unified judgment standard for the court in dealing with relevant issues.The article includes five parts outside the introduction and conclusion,which are as below:The first part is an overview of the basic theory of alienation guarantee.This part mainly includes two aspects.First of all,the basic connotation of assignation guarantee is determined.It fully embodies the principle of party autonomy,and has a wide range of objects.Secondly,it explains the historical origin of alienation guarantee system and relevant practices outside Chinese mainland,and mainly introduces the provisions on alienation guarantee system in Germany,Japan and Chinese Taiwan in the continental law system.The second part is the theoretical analysis: the theoretical dispute of the assignment guarantee system.This part analyzes the dispute about the system of alienation guarantee from the Angle of theory.It is mainly the theory divergence and the dispute of whether to construct the system of alienation guarantee.There are three different theories: ownership theory,right of guarantee theory,and compromise theory.And whether to construct transfer guarantee system can be divided into positive theory and negative theory.The third part is the necessity of the assignment guarantee system.This part explains the necessity of assignment guarantee from the mode of private law autonomy,the application of legal method and the principle of real right.Under the mode of private law autonomy,civil law and property law belong to private law,and the only principle of private law is private autonomy.The assignment guarantee under the application of legal method is mainly explained from the two perspectives of interest measurement and value judgment.Therefore,the so-called breach of the liquidity clause of the transfer guarantee system is not the root cause of the problem.The assignment guarantee under the real right legal principle,first makes clear the assignment guarantee does not violate the real right legal principle,then elaborates the assignment guarantee system under the relaxation of the real right legal principle.The fourth part is the empirical study: the judicial judgment standard of assignment and guarantee dispute is different.This section differed by relevant judicial case referee results have different standards about guarantee disputes judicial judgment in our country,mainly divided into three types: First,the validity of the assignment guarantee agreement is acknowledged.The second is the uncertainty that part of the recognition of the effectiveness of the transfer guarantee agreement.Third,the validity of the assignment guarantee agreement is not acknowledged.The above different standards reflect the different value judgment and thinking mode of judges.The fifth part explores the path: the concrete construction of transfer guarantee system.This part discusses the concrete perfection of transfer guarantee system from the following four aspects: transfer guarantee system's subordination,its relationship with Substitutes' compensation,its coordination with banned liquids and transfer guarantee system's publicity methods.