Custodian Responsibility For Dynamic Pledges Under The "Joint Possession" Approach

Dynamic pledge,as a new form of security,differs from traditional pledge in that it can better balance financing efficiency and security due to the dynamic nature of the pledges and the intervention of the supervisor.The essence of a dynamic pledge is the pledge of movable property,and the value of the pledged property has been specified at various points of its operation,and the basic conditions for the specification of property rights can be achieved.The criteria for the establishment of pledge in dynamic pledge determines the analysis of the supervisor’s liability,and the supervisor supervises the pledged property to form a state of"joint possession" between the pledgee and the pledgee,which is a state of unified joint possession,which has already completed the delivery of the pledge and realized the "actual control" effect."It is a new form of delivery in accordance with the Civil Code;"joint possession" as a criterion for judging the establishment of pledge is the result of taking into account the dynamic pledge business practice and the jurisprudence of security interests,and it can show the rights and obligations between the parties,which should be used as a path to analyze the responsibility of the supervisor.Under the common possession approach,the supervisory agreement is actually a mixed contract with the nature of both the commission contract and the storage contract,which is in line with the law of dynamic pledge practice,and the legal application of which should be adopted from the viewpoint of "combination";the subject of the supervisor has a dual nature,and the supervisor should undertake the commission contract and the storage contract respectively according to the agreement.The supervisor shall,according to the agreement,bear the legal obligations stipulated in the commission contract and the storage contract.The liability of the supervisor to the pledgee should,in principle,adopt the principle of fault liability and assume supplementary liability,that is,the first should be limited to the scope of the impairment of the value of the pledge,within which the claim can not be paid for the part of supplementary liability.If both the pledgee and the creditor are not at fault for the loss of the pledge,the supervisor shall,in principle,bear full liability for the loss of the pledge;the balance of the unpaid claim shall be compensated to the pledgee as the owner of the pledge.Unless specifically agreed or jointly infringed,the custodian is usually not recognized as a joint and several liable person.