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Dispute with the guarantee system to points and China's Countermeasures

First, to guarantee system and an overview of

make and guarantee, that the debtor or third party to fulfill the purpose of secured debt will be guaranteed the right of the subject matter (usually ownership) transferred to creditors in advance, by both parties in the debt settlement, will guarantee the return of the subject matter of the debtor or a third person; in non-performing debt, the debtor may be paid in respect of the subject matter of a security by way of security. And guarantee system to the modern dating back to Roman law in the In continental Europe, the codification of modern wave,[link widoczny dla zalogowanych], so with the security system is such mortgages, security interests such as the right quality overwhelmed the system, legislation has not been confirmed, but some countries and regions of the Code, due to the Civil Code lack of physical security systems, so with the guarantee system has been gradually developed through the jurisprudence of the form. In modern civil law system, to guarantee the validity and acceptance of its form in the [1] Chinese papers League finishing.

to the superiority and security is: First, it can increase the possibility of financing. First of all, security can be achieved with the collection of property (including a collection of mobile property) guarantees of. Secondly, let and security can make some of the typical security interest can not be set to achieve security of the rights.社会 all types of newly formed or are in the formation of property rights in computer software, such as the right to call Jiaru Rights (Japan), a simple registration of real property was not saved, to be purchased in real estate, construction of buildings, old shops and signs, etc. special rights, on which a mortgage or pledge any further queries, but with the security can be achieved by having the security of such property. Second, it negates or third-reduction possibilities. So that security can be cut and the third made by the subject matter or the posterior Secured hinder the emergence of the possibility of realization of security rights. Third, it can reduce the transaction costs. And guarantee to save mortgage, pledge the cost of implementation and to avoid the subject matter in the low price of the auction process for the negative.

guarantee system and also to the following shortcomings: First, as to relations with the secured transactions and security rights are set dependencies between the basis, so any of them in Infidelity, both will damage the other party's interests. Secondly, let the right people and secured debt the debtor can not fulfill the right to implement security features, and also means that the damage has thus set the people and the risk of third party interests. In response to these shortcomings, the above countries and regions to take a series of remedial measures, the most important is on the obligations will exceed the claim amount of the balance of the value of collateral and guarantees to return to the set of people. [2]

Second, our country and the security system should be taken so that the attitude of

recent years with the drafting of China's property law, scholars study the system of property rights is very warm, in this context , the jurisprudence of our country has always been relatively unfamiliar with the guarantee system to study the introduction and reached a climax, a series of significant [3], and in practice appears around the ) security debate, so with the guarantee of the formation of positive and negative two diametrically opposite view. To Dr. Wang Chuang, represented by certain commentators hold the view that Hong Kong passed from mainland China by way of security the mortgage, in essence, to the mainland system, security system and the same should be adopted in its transformation to establish the basis for our and guarantee system; [4], represented by Professor Wang Liming, who held a negative view of, so with the guarantee system in China is not the same practice in the mortgage, which is formed in a very balanced between the parties of mutual checks and interaction in the design of the system is more reasonable than the earlier ones, so do not advocate the introduction of civil law to China and the guarantee system. [5] At present, seem to hold a positive take on the advantage in the delivery of the draft Civil Code of the NPC Standing Committee, to make provisions with the security system was. Combination of academic discussion, I think of Security system has the following three controversial points:

First, China should not admit to and guarantee system.

Should we be admitted to and guarantees on this issue, I believe that other countries should establish the system of material causes and the composition of the security system to find the answer. And the guarantee system to establish the causes and in various countries to adapt to this role of its scope and extent varies. For example, in Germany, to appear with the purpose of security is to realize the function of the chattel mortgage system, [6] Therefore, its scope is very broad. In Japan, first of all, with the guarantee to be outside in the existence of civil law regulation and development, partly because of its breadth and flexibility for the object, on the other hand the typical security system because of Japan's own shortcomings: First, is the specific forms of security in general, movable and immovable property, rights object with a specific application of selective and legal constraints,[link widoczny dla zalogowanych], obstacles to play their role, can not meet the social and economic development. Second, is the modern economic activities, the emergence of new forms of property rights - a collection of real estate, mobile real estate, debt collection, mobile claims, intangible rights, such as security suited to the subject matter. And with the guarantee system to a certain extent, ease the use of these two defects caused by the enormous tension with social practice. Secondly, let and secured to avoid the security right is a In Japan, mortgage, pledge to implement a statutory way of auction, in addition to cumbersome procedures, the cost of high spending, spending long hours outside, and because the subject matter is divided and other factors which may not fully realize its value; the same time, real estate to be publicly registered mortgage credit and debt situation of the parties and other business secrets or personal financial secrets. From the parties the freedom to choose law as a point of view, transferring security to avoid these deficiencies. [7]

cf the German, Japanese situation, I believe that China should be admitted to and guarantee system for the following reasons: First, China and the aforementioned countries, also faces can not be set for some typical property rights to achieve its security interest of the common security issues and security to undoubtedly one of the solutions available. Second,[link widoczny dla zalogowanych], our current security system where there is not circumspect, and security need to be supplemented. In China, the subject of the chattel mortgage and the taking into account the recovery force, it should be limited to a certain range. The rest of the movable property, divided by the pledge, retention of title guarantee, and guarantees are also available for parties to choose. There are a collection of property, especially on the set of liquidity guarantees of property, our country is still blank on the regulation, even if the consortium will establish a mortgage and floating charge, due to its limited scope of application or other deficiencies, such as the floating charge only applies to corporate enterprises, financial mortgage production Third, China has emerged in reality similar to some of the guarantees and security methods, such as mortgages and must be regulated.

second, whether China should be written to the system with Guarantee Legislation.

well known, so that the mainland's system with the security of some countries and regions in the form of codification of case law established by following up an atypical security system. Although in these countries or regions there have been calls for the establishment of the proposed Regulation, as in Japan, according to some incomplete statistics, from 1918 to 1994, with the guarantee of at least four times to important legislative proposal, but has not a country or region to become a reality. The reason, I believe, on the one hand and the security system has not been established so that, as in so that the composition and security, Japan is still in from the the difficulties of its regulation; on the other hand to be concerned with the security of property, personal property, rights, property, collection, liquidity is still in the formation of property and even the property rights is extremely complex, this is a guarantee in any of the Civil Code system have not been seen, so its legal existence of the Legislation and the Legislative technically difficult to overcome. Finally, autonomy and security as a product of private law, if its legislative rules (these difficulties may lead to inappropriate legislation), may curb its vitality, it is difficult to achieve the desired legislative goal. Japan security system false registration legislation (1978) is one example. Therefore,[link widoczny dla zalogowanych], I strongly opposed to the written specifically with the security system of the Legislation.

Third, the recognition of our country and guarantee system to be written, but not of the Rules and Regulations of the conditions, what adjustments should be taken way.

author believes that China will make claims on the law and the guarantee system (contract law) within the framework of regulation, relatively proper fitness. First, as mentioned earlier, so with the security system can be traced back to the Roman law of the trust, the trust was divided into two kinds of management of the trust and the guarantee trust. On the management of trust [8] later continental reference system for some countries and regions
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