Analysis On The Effect Of Pactum Commissorium

The pactum commissorium contains fluidity clause and flow-mortgage clause. From Emperor Justinian enacted the writ of prohibiting pactum commissorium in A.D.326, many coutries of civil law system carry on this writ and regard the rule of prohibiting pactum commissorium as a goldenrule. Review a variety of reasons of prohibiting pactum commissorium, it is mainly in order to protect the loanees from the distress and urgency, prevent loaners damaging the interests of loanees and maintain the fair dealing. Though the reasons are looked like the truth, they are lacked of grounds. In the modern civil society, the pactum commissorium is not certain to damage the interests of guarantors and other loaners, not certain to violate the fair dealing and the aim of security interest. On the contrary, the pactum commissorium accords with autonomy of Private Law, makes for raising the chances of secured financing and putting down the cost of carrying out security right. Our legislation should recognize the effect of pactum commissorium for the sake of completing social foundation and ideas of civil law, coordinating interior rules.This article is concerned with the effect of pactum commissorium along the controvert path of "investigation"→"criticism"→"reasoning "→"rectification ", it is divided into four parts:Based on the name of pactum commissorium, the first part describes briefly four legislative models. First, inhibit model represented of German law prohibits completely pactum commissorium in all the guarantee system. Second, distinguish model represented of Japanese law claims to prohibit the fluidity clause or flow-mortgage clause in the guarantee system. Third, permit model represented of French law permits that party clients make the pactum commissorium and acknowledge the effect of pactum commissorium. Fourth, random model represented of Italian law is silence to the effect of pactum commissorium and applies to the fundamental of civil law in practice. As it were four legislative models reflect different kinds of preferences in values, more and more countries begin to take effect on the pactum commissorium, the indication of the pactum commissorium reveals its importance for the first time.The second part analyses the traditional negativism of pactum commissorium and comes to a conclusion that the negativism's evil consequence is not occured necessarily. The traditional negativism reckons that prohibiting pactum commissorium is rectified contract freedom as contract justice, but it is not suitable that using complete negation for the sake of contract justice. Prohibiting pactum commissorium is far from the best path of protecting the interests of guarantors and other loaners.The third part is responded to the second part and sets forth mainly the three reasons for effectiveness of pactum commissorium. First, pactum commissorium comes up to autonomy of Private Law. Second, pactum commissorium can make for raising the chances of secured financing and putting down the cost of carrying out security right. Third, pactum commissorium has multiple-unit the types of effect. Under the premise of keeping on the right side of mandatory rule, pactum commissorium of publicity-type and noninvasive-type can be effective. Thus, the legislation should be allowed to existence of pactum commissorium, or give an impartial evaluation to pactum commissorium.The fourth part first clears up our developed history of pactum commissorium in vertical integration. Proceed to the next step comparing pactum commissorium to foreclosure of dien and foreclosure of pawn in lateral integration. It is exposed that our pactum commissorium has two dilemma of effect. For the purpose of improving the rule of pactum commissorium, our legislation should carry on the tradition of pactum commissorium and keep the coordination with other legal systems. Not only adopting permit model to recognize the effect of pactum commissorium at the macro-view, but also taking advantage of settle accounts and vormerkung to adjust the rule of pactum commissorium at the micro-view.