Research On The Practical Development And Regulation Of The Granting Guarantee System In Our Country

As one of the most important ways of "non-typical guarantee",transferring guarantee has many advantages,such as flexible way of establishment,wide scope of application,convenient way of realization of security rights and so on.Although the legislative regulation of transferring guarantee in our country has been in a blank state for a time,it does not prevent it from being widely used in the economic practice of our country.In addition to the most typical-type transferring guarantee,more and more new commercial transactions based on the theory of transfer guarantee have begun to appear in recent years.In November 2019,the guarantee function of transferring guarantee was recognized for the first time in the Minutes of National Court’s Civil and Commercial Trial Work Meeting.The Civil Code also confirmed the validity of the non-typical guarantee contract.The Judicial interpretation of guarantee system in Civil Code further regulates the application of transferring guarantee from the legal level.The system of transferring guarantee has inevitably become the focus of legal research in our country.Based on the study of the practical development of the transferring guarantee system in our country,this paper puts forward the tentative ideas of the construction of the transferring guarantee system in our country.This paper mainly includes the following four parts:The first part is an overview of transferring guarantee.First of all,this part discusses the concept,characteristics and historical evolution of the transferring guarantee,as well as the differences between the transferring guarantee system and the similar systems such as "property for debt" and "ownership retention".Then through the analysis of the different theories of the legal composition of the transferring guarantee,the author puts forward the author’s point of view.The second part is the practical development of the transferring guarantee system in our country.First of all,this part introduces the shift in attitude for transferring guarantee from avoiding negation to encouraging recognition in our country from the drafting era of the property Law to the post-Civil Code era.Then,sort out the judicial decisions before and after the issuance of Minutes of National Court’s Civil and Commercial Trial Work Meeting.Before the publication of National Court’s Civil and Commercial Trial Work Meeting,there were a variety of attitudes towards the validity of the transferring guarantee in our country.After National Court’s Civil and Commercial Trial Work Meeting was issued,the dispute over the validity of the alienation guarantee came to an end.Finally,to research the legal essence of the new financing transactions,such as "sale and leaseback","margin trading business","de jure investment and de factor loan" and so on.The third part is the analysis of the necessity of constructing the transferring guarantee system in our country.Transferring guarantee has the advantages of improving the efficiency of social financing,strengthening the protection of creditors,perfecting the real right system of security and so on.Because the existing transferring guarantee system in our country has some defects such as the lack of publicity of the change of guarantee object and the lack of independent realization of guarantee rights,our country should construct the transferring guarantee system.The fourth part is the construction of the system of transferring guarantee.In this part,the author put forward some suggestions to solve the problems which pointed out in the third part.First,the guarantor is allowed to agree on the way of publicity for the property rights that cannot be registered by change.Second,on the basis of the existing way of realization,the parties are allowed to agree on the way of realization on the basis of fairness and justice.