Flow Guarantee Prohibits The Reflection Of The Rules

The special items engaged by the party in advance, which mean that the secured creditor will attain the ownership of the engaged collateral when the debtor can't pay off the due debt, be called liquid substance item in the hypothecation contract and flow escort item in the mortgage contract. "The fluidity item" that this paper uses is a general designation of the liquid substance item and the flow escort item to.Since the fluidity item was forbid by the Roman law, many continental law legal system countries follow this provision, and use up to now as its consensus rule. Our country's guarantee law also prohibit the fluidity item according to lawmaking relation. Before the real law was set, some scholars write paper to claim the acknowledgement of the fluidity item, but wasn't be accepted finally.However, all countries' reasons for the prohibition of the fluidity item, show simply and lack of persuasion. There have much of necessity to analyzing and reviewing. In fact, in France, Germany, Switzerland and Japan etc., some civil law scholars unfurl self-criticism with the prohibition of the fluidity item on the judicial precedent and the theory, even also appearing some new trend on the lawmaking in some nations. It is a regret that our country's real law have no conformance to flow the development trend of the fluidity item and still prohibit the fluidity item.According to the above reason, this paper tries to adopt of the analytical method, the historical method, the worth analysis method and the system method etc. to display the legislation mode of the fluidity item; to analyses the prohibition of the fluidity item; to argue the worth meaning, possibility and necessity for accepting the fluidity item; to discusses the perfect path of the fluidity item; expecting to bring some benefit for perfecting and developing related rule of real law.The main body of this paper can be divided into three parts. Part one analyses the prohibition of the fluidity item based on the summary of it's legislation mode; Part tow argues the legal theory foundation and realistic condition of accepting the fluidity item; Part three discusses the perfect path of the fluidity item.