The Comparative Study On The Realization Of Floating Charge

Deriving from the Equality Law, Floating Charge has had a history of more than a century. Under this type of guarantee, the charged property can be the present and future property of the charger. And the charger is entitled to dispose of these properties within certain limits. Thanks to these advantages, Floating Charge plays an important role in financing while brings the use value of the charged property into full play. As the flexible and inclusive, Floating Charge has been thriving in the areas adopting the Common Law and has been assimilated by many countries applying the Continental Law. The realization of Floating Charge is the key element of this system and has been differently stipulated in different countries applying the Common Law and the Continental Law. In Recent years, China has taken this system in its newly promulgated"Property Rights Law", there remains defects in its realization, resulting in its poor role of guarantee. Therefore, in this paper defects of China's Floating Charge were discussed with the realization of Floating Charge as the theme by comparative study on the system in the Common Law and the Continental Law.This dissertation composes of the following four parts:The chapter 1 discusses the prerequisite of the realization of Floating Charge. Comparing the similarities and difference of the prerequisite of the realization of Floating Charge in England, America and some typical countries applying the Civil Law, i.e., Japan, Germany and France. Above the exposition, we find that the prerequisite of the realization of Floating Charge System or the similar system, they rule the similar provisions. However, the different provisions about the establishment of floating charge in different countries, so that the events of realization also constitute different among these countries.The chapter two compares the Preferential right of Floating Charge in England, the U.S.A, Japan, Germany and France. The author focuses on the priority between the floating charge and the competing interest, the priority between the floating charge with the After-Acquired Property Clause and the Purchase Money Security Interest and waiver or the subordination of the security interest. The registered system influences the Preferential right of Floating Charge, especially in the U.S.A, the particular type of registration system depends on the Preferential right of Floating Charge. But in England, the outcome of a priority dispute concerning registered interests depends very largely on the particular type of registration system that is applicable.The chapter 3 compared the execution of Floating Charge in England, the U.S.A, Japan and Germany. In the market economy, the holders of the floating charge more pay attention to increasing efficiency,so that the execution of floating charge is the important element to deal with the question above. Comparatively speaking, the Common Law countries are apt to solve the realization of the floating charge by self-protection. Self-protection has some advantage, which is the quick, efficient and low cost enforcement. Especially the receivers system in England and the U.S.A, the holder of the floating charge could often employs receivers to enforce security, not by court. In Germany, Sicherungsabtretung allows parties to negotiate the clauses which about appraise price and sale the guaranty if the security right is realized. Of course, apart from self-protection, public protection is also significant in the execution of the realization of floating charge. In China, we still have a long way to reform the execution in the private law.At last, a discussion about the defects of the realization of Floating Charge in the Property Rights Law was given and respective solutions were also provided. The chapter 4 is the principal aim of this thesis, first, it discuss the legal obstacles to the realization of the floating charge in China. Nowadays, the floating charge system has already been taken into China's practice. But in the Property Rights Law, there are some defects and flaws about the realization of the floating charge. Then, the author gives some suggestions as follows. First, the duty of registration is contributed to the company and the floating charge is void against liquidators and receivers if it had not been registered. The ranking of the floating charge and the competing interests should be stipulated in law. Second, the receivership should be transferred wholly and provided in insolvency law. To meet the need of financing and commodity circulation in market economic. Thirdly, we should built social credit rating system, which helps maintain trade safety, lower bargain risk.