Study On The System Of Transferring Guarantee

With the development of economy, the traditional ways of security have been unable to meet the financing requirements of people. With its unique functions, transferring guarantee has enjoyed popularity in warranty practice. As the demand for transferring guarantee stronger and stronger, the scholars of civil law system have begun to research about transferring guarantee. Many countries and regions of civil law system such as Germany, Japan and Taiwan have gradually recognized transferring guarantee in theory and judicial precedent. However, transferring guarantee has had many defects in theory which seriously endangered the principles of Real Rights Law and civil law system, and it has been going against the interests of debtor and the third party. So far, in the majority of countries and regions of civil law system such as Germany, Japan and Taiwan, Transferring guarantee is just an untypical way of security outside the statute law.Defects couldn't cover functions. Transferring guarantee has helped to expand the scale of the financing and guard against financial risks. Legislation should conform to the social and economic development, we shouldn't totally deny transferring guarantee arbitrary, on the contrary, we should make efforts to improve it and finally make it legislated in China.During the legislative process of Chinese Real Right Law, the legal experts had a heated discussion, which focused on whether this kind of guarantee should be legislated in China, and how to regulate it. The research team of Chinese Academy of Social Sciences which led by Professor Liang had been submitted a draft of Real Right Law. The chapter ten of the draft had been regulated transferring guarantee explicitly. Because of the failure to actually settle the defects of transferring guarantee, transferring guarantee had been finally rejected to adopt in Real Right Law. However, The draft of Real Right Law had reflected the social need, which had motivated me to study this kind of guarantee widely and deeply.This paper consists of four parts. The first chapter describes the history of transferring guarantee. Transferring guarantee originated from Fiducia of Roman Law and Treuhand of German Law. There are great differences between Fiducia and Treuhand. The second chapter analyses several transferring guarantee systems which have been established by such countries and regions of civil law system as Germany, Japan and Taiwan. This chapter points out the differences among the transferring guarantee theories of Germany, Japan and Taiwan. The third chapter establishes our country's transferring guarantee system. In the chapter, the author analyses the unique value of transferring guarantee and demonstrates the necessity and reasonableness of transferring guarantee. On that basis, the author analyses the legal constitution and concrete content of transferring guarantee, and put forward the benefit balancing measures. The forth chapter compares the similar systems such as mortgage, sale and lease-back, trust receipt (including our country's inward bill receivables) with transferring guarantee.