Let The Functional Study, And Guarantee The Legal System

Cessionary guarantee is a non-typical suretyship jus in rem which formed through judicial precedent and theory, following Fiducia of Roman Law and absorbing Treuhand of Germanic Law. Because cessionary guarantee is a illegal guarantee, the rationality of its existence is always suspected by scholars. In fact, whether we should approve and accept a legal system is mainly determined by if it can meet the need of society or not, to interpret this point, the better way is to study the function of the legal system. To explain the value of cessionary guarantee and the necessity of its legislation, the thesis adopts legal sociology, legal economics, legal comparison and legal positivism to study the function of the non-typical suretyship jus in rem from different perspective.The thesis is divided into four sections:Section one: The basic content and significance of cessionary guarantee's functional study. Function is the effect that system acts on its survival environment and bigger system or the component parts of system act on environment and system. Functional analysis is a typical method of sociology, which is widely applied in the field of law with the rising of legal sociology, the method studies law and reveals its meaning and function in society. In the thesis, the author tries to use the method and the semantic analysis of function to determine its basic content. As a non-typical suretyship jus in rem, cessionary guarantee is always criticized fiercely by many scholars from its birth; during the course of the formulation of our civil code, scholars have different opinions about whether we should put cessionary guarantee into the code. Therefore, to study the theory's function and to interpret its value are important in theory. Furthermore, in recent years, the great improvement of our country's economy also need more efficient guarantee means such as cessionary guarantee, so the study has important practical meaning, too.Section two: The study of cessionary guarantee's positive functions. The thesis studies cessionary guarantee's positive functions from the four views of social economy, comparison, positivism and theory. From the view of social economy, wecan learn that cessionary guarantee has the following positive functions: expanding guarantee scope, increasing movable property guarantee's profit, decreasing trade cost and preventing others from attending trade. During the comparison inspection, the author compares cessionary guarantee with chattel mortgage, retention of ownership, mortgage and trust possession. Comparing cessionary guarantee with chattel mortgage, we can see that although they have some common functions, cessionary guarantee has more virtues than chattel mortgage, so we should adopt the legislative model including them both before distinguishing one's application scope from the other's; comparing cessionary guarantee with retention of ownership, it is easy to conclude that they are too many differences to put them together to form one chattel guarantee means; comparing cessionary guarantee with mortgage, we can see that although this guarantee means appearing in the mainland of our country is very similar with cessionary guarantee, it is not ripe and there are many differences between them, so we should regulate it by special law, not treating it as cessionary guarantee; it is distinguished that cessionary guarantee is very different from trust possession, so we should not use cessionary guarantee coming from system of civil law to make up trust possession's flaw coming from system of common law. From the view of positivism, the thesis inspects cessionary guarantee's application in Germany, Japan and our country. Although cessionary guarantee develops in the different way in Germany and Japan, it becomes more and more important in their guarantee practice. But in the economical life of our country, cessionary guarantee is not used so widely as in the above two country, it is still a illegal guarantee means that does not violate the principle of contract's freedom. Bankrupt liquidation organization of clothing factory in Linhai city V. the fourth construction corporation is a case that people uses cessionary guarantee as a guarantee means creatively in the practice of social life and the court accepted it voluntarily according to theory, which interprets cessionary guarantee's positive function from the view of one case. From the view of theory, we can find cessionary guarantee is also very important. It promotes guarantee means "from limited right to ownership"; it also decreases the influence of Numerusclauses; it also makes ownership more flexible in the domination of the principle that weshould take advantage of one thing as thoroughly as possible.Section three: The study of cessionary guarantee's passive functions. Cessionary guarantee has the above positive functions, but at the same time, it also has the following limitations that can t be neglected: It results in the credit crisis of debtee and debtor easily; it realize creditor's rights so easily that it may harm debtor and others; it also may bring risk to others because it lacks of good ways of demonstration. But the above limitations can be overcome through the following ways: Punishing faulty tort-feasor to decrease the chance of credit crisis; founding just exchange procedure and punishing faulty debtee to protect debtor and others; adopting different but fit ways of demonstration according to movable property guarantee, real estate guarantee and right guarantee to decrease risk brought to others because of lacking of good ways of demonstration.Section four: Finding necessity of cessionary guarantee's legislation from the study of its functions. During the course of the formulation of our civil code, scholars debated fiercely about whether we should put cessionary guarantee into the code, and they formed agreeable and disagreeable opinions. In fact, it is a value judge not a legislative choice that to compare cessionary guarantee's positive and passive functions and to adopt it or not. In the end of the thesis, The author interpret her opinion about cessionary guarantee's legislation, basing on the above function inspection, only want to reveal the intend that she supports cessionary guarantee by writing the thesis.