| The 20 th National Congress of the Communist Party of China said,"As China puts forward and implements the new concept of development,we will strive to promote high-quality development……A historic jump in our economic strength ".As an important part of economic activities and market guarantee transactions,liquid clause should make full use of its high efficiency and convenience to serve the market.Although Article 428 of the Civil Code stipulates the liquid clause,the application of the liquid clause is still to be perfected.Therefore,in order to maintain the meaning autonomy between the parties,create fair and efficient trading atmosphere,and unify the applicable standard of the liquid clause,it is necessary to systematically improve the application of the liquid clause in our country.The liquid clause refers to the clause that agrees with the debtor when the pledge contract is concluded that the pledged property will be owned by the creditor when the debtor fails to perform the debt.There are many controversies in both academic circles and practice.The main disputes are "forbidden" and "permitted" in liquid terms.The purpose of "forbidden" is to ensure that the real right of security can be realized fairly and protect the interests of the parties from being infringed.The purpose of "permitted" is to maintain transaction efficiency and autonomy of will,respect the free choice of the parties,and realize the guarantee purpose of the parties efficiently and conveniently.Although the attitude towards liquid clause has softened after the promulgation of the Civil Code,there are still some parts to be improved,such as the doubtful validity of liquid clause and the fuzzy boundary between liquid clause and atypical guarantee,etc.Only by examining the existing problems can reasonable suggestions be put forward on whether liquid clause should be lifted and improved.Our country’s systematic construction of liquid clause should be based on allowing the liquid clause.First,the party acknowledges the validity of liquid clause with conditions and the law makes clear the validity of liquid clause.The party can set up the validity of liquid clause based on the validity of the clauses and can determine the validity of liquid clause accurately in judicial practice.The second is to circumvent the drawbacks of liquid clause through auxiliary mechanism.Four auxiliary mechanisms are put forward,which can be divided into prior protection mechanism and post-relief mechanism.The prior protection mechanism adopts registration antagonism,and the post-relief mechanism is liquidation mechanism,revocation right and redemption right respectively.The systematic construction of the liquid clause through the above auxiliary mechanism can make the liquid clause serve the market economic activities maximum while ensuring the fairness and taking into account the autonomy of meaning and the efficient and convenient transaction between the parties. |
