An Empirical Study On The Identification Of Assignment Guarantee Based On Effective Judgment

Since the implementation of the socialist market economic system in China,the assignment guarantee has been widely used in the field of financing with its advantages of high efficiency and flexibility,but it has not entered the formal system.The Minutes of the National Conference on Judicial Work in Civil and Commercial Matters of the Supreme People’s court has made preliminary provisions on the transfer guarantee,which has been improved in the subsequent interpretation of the guarantee system.How to understand the above provisions and how to apply them in judicial practice remains to be further discussed.A total of 4158 samples were collected through keyword retrieval on the legal big data empirical research platform.After random sampling and preliminary screening,a total of 628 effective samples were obtained.On the whole,the number of transfer guarantee dispute cases in the sample judgment documents gradually increases with the passage of time,mainly concentrated in the grass-roots courts and intermediate courts,and there are more cases in areas with high economic development level.Three elements are the most reasonable for the identification of assignment guarantee,which can minimize the transaction cost,ensure the flexibility of establishment and expand the scope of guarantee.The existence of creditor’s right and debt relationship is the premise,the purpose of guarantee is the core,and the transfer of property rights is the form.The identification of specific elements needs to make a high probability judgment according to the facts of other cases.The Minutes of the National Conference on Civil and Commercial Judicial Work and its subsequent provisions adopt the viewpoint of three elements and are widely applied in judicial decisions;The legal relationship of assignment guarantee has both creditor’s right relationship and real right relationship.The creditor’s right relationship is a contractual relationship with internal termination conditions.On the premise that there is no violation of mandatory provisions,the assignment guarantee has the effect of creditor’s rights;The real right relationship is a legal relationship against the priority of external third parties.If the collateral completes the publicity of the change of property rights,the secured party has priority to be compensated within the value of the collateral.Real estate,special movable property and property rights with registration institutions shall be registered and publicized;The transfer of ordinary movable property in possession and property rights without registration authority shall be delivered and publicized;Ordinary movable property of non transfer possession shall be publicized with signs.The assignment guarantee of ownership type is only invalid in terms of liquid quality.The liquidation disposal type fully conforms to the realization mode of typical security interests.The liquidation attribution type should affirm its effectiveness on the premise of ensuring reasonable value evaluation and proper liquidation procedures.It is the due meaning of assignment guarantee with institutional advantages such as efficiency,flexibility and simplicity.If the debtor is unable to pay off the debt and there is no dispute between the parties,the wishes of the parties shall be fully respected,and the secured party shall obtain the ownership of the subject matter of the guarantee and affirm its repayment effect.