Study On Some Issues Of The Creation Of Transferring Guarantee System In China

Nowadays, technological innovation does influence the reality in the age of economic globalization, and without a doubt, the preservation and development of enterprises is extremely significant because they are already bonded to the happiness of people. Meanwhile the bankruptcy of enterprises or companies becomes to a common phenomenon, therefore the reliance on financing is increasingly essential to enterprises. As the response for that, the financial institution credits the enterprise which is requested to pay the debt before the time limit for its performance of the obligation based on that credit that guaranteed as products, machines or equipments. That is the very original reason why transferring guarantee existed. The enterprise warrants the products, equipments, machines, etc, as the security to the loaner without transferring the possession for constantly existing. When the enterprise stuck in problems or hardly maintained, it will risk bankruptcy, because of that the loaner might be lost for devaluation of the security. Therefore debt service becomes a pursuit that enterprises and loaners both appealing for so that the capability of paying debt will eventually be the protection of enterprises themselves. That is exactly the social meaning of transferring guarantee. This thesis is about the research of the creation of transferring guarantee system on some particular issues into three parts.First part is about the necessities of creating transferring guarantee system. The thesis discusses the concept of transferring guarantee as the theoretical foundation, mainly on the distinction of transferring guarantee and mortgage by transfer and the connection between transferring guarantee and redeemed system. Then the thesis studies on necessities from three angles: the unity of civil law system, comparative advantage and finance approach. Some existed laws in China already confirmed several special transferring guarantees, Margin Trading and Short Selling for example. On the other side mortgage is the most typical application of transferring guarantee in commercial practice. The characteristics of transferring guarantee make it rather unique: virtually no limit of target, simple and convenient procedure of execution, none-transformation of possession, warranty of ownership. All these features make transferring guarantee much more flexible than traditional guaranties. As the comparison with other similar guaranties, the thesis puts up chattel mortgage, floating charge, title retention and estate hypothec as instances to prove that transferring guarantee is irreplaceable. In this part the thesis demonstrates the impact of finance on modern secured transaction and emphasizes the process that how warranty turns into finance as the main function of transferring guarantee, and analyses the importance of transferring guarantee to the SME in China.The main idea of the second part is about the feasibility of transferring guarantee creation. The main idea of the second part is about the feasibility of transferring guarantee creation. This part discusses the validity of transferring guarantee based on the legal construction theory. There are three major doctrines on legal construction theory: the ownership theory, the transformation theory and the warranty theory, but generally speaking the transformation theory could be considered as another warranty theory. Form the theory of legal construction, the idea that transferring guarantee is a fake expression could be defeated, and considered the execution of transferring guarantee, the view of fluidity would also be proved incorrect, and collective chattel guarantee is legit either. The objection of transferring guarantee creation is all concerned about those arguments, and we find out that they are all irrational.The third and final part is concerned about the basic theory of legislation on transferring guarantee. The research of legislation of transferring guarantee is a complex and multifarious topic which involves numerous issues such as economy and sociology. Hence the study that split up to three sections in this thesis, specifically particularize to the announcement, the setting and the effectiveness, has to focus on the frame of legislation and logic problem. The announcement section analysis is a combination of the reality of China and announcement laws in Japan as the reference resources. As the situation of setting, the thesis focuses on two points: the delayed sequence right of transferring guarantee and the debt asset pattern of transferring guarantee, then lead to the choice of the theory of legal construction. The effectiveness section could be divided into inner part and external part. The former part is regarding to the utilization of the target, and the latter part is more inclined to the study of Bona Fide Acquisition, especially on the third party.Professor Kakimoto said that transferring guarantee is the first step of maintaining the vitality of enterprises. In china the researches and studies on transferring guarantee are way out of sufficiency. Through the study above, there is a conclusion that we can achieve: it is necessary and practicable to establish the transferring guarantee system in China.