The Determination Of The Effectiveness Of Atypical Guarantee From The Perspective Of The Civil Code

The principle of numerus clausus has always been the basic principle in the field of property law.However,the application of this principle in the sub-concepts of ownership,usufructuary right,and security interest should be different.Because security interests are undifferentiated in terms of contents and they are unexceptionally the right to be indemnified at a variable price in respect of the ownership or other right to the guaranty.Therefore,the name does not matter.As long as the content is statutory,the name of the security interest can be agreed by the parties themselves.As for the untypical guarantee emerging continuously in the judicial practice,its core content is the same as that of typical security interest.Therefore,we should pay attention to the economic interests behind the parties’agreement when we detemine the untypical security interest,to see if we can create security interest for the secured claim.In Clause 388.1 of the "Civil Code of the People’s Republic of China"(hereinafter referred to as the "Civil Code")added the provision that "guarantee contracts include mortgage contracts,pledge contracts and other contracts with the function of guarantee",which expands the scope of guarantee contracts from the perspective of substantive functions.The scope opened up a window for atypical security interest,which can be adjusted by chapter of security interest.The purpose and pattern of atypical guarantee stipulated by law are coincide with the security interest,and this type of untypical guarantee should belong to security interest without any doubt.In the situation where the existing laws don’t provide any quasi-application norm on priority order of repayment,limitation of action,etc.,some action should be taken in the judicial practice.As for untypical guarantee for which there is no legal provision,if the parties agree to form a structural expression of"security contract+specific object",it should be ascertained as security interest,while the nature of the guarantee contract must be ascertained by constructing a dynamic system on the basis of limiting the contract elements.Although publicity cannot make non-property rights a real right,it will affect the scope and intensity of the exclusive effect of atypical security interest.Through publicity,the exclusive effect will be expanded from only against the guarantor to against bona fide third parties in the dynamic legal order.When the debtor fails to perform the obligation or when the realization of the real right for security as agreed by the parties occurs,according to Article 68 of the Interpretation of the Civil Code of the People’s Republic of China on the Application of the Security System of the Supreme People’s Court(hereinafter referred to as the "Interpretation of the Security Law"),refer to the mortgage chapter of the Civil Code on the realization of real rights for Security Provisions on the property prior compensation.