| Floating charge system originated in Britain, its financing function， withflexibility and efficiency, not only meets the demand of guarantee of the creditors, butalso does not interfere the debtor dispose of assets in the ordinary course. It has beenadopted by most countries in the world, and be judged very convenient, very usefuland the most inclusive guarantee form. In China, in2007the floating charge systemin the property law was introduced, but were too simple. The core of security systemis the order of security right, but the property law in our country has not stipulated toprioritize floating charge and fixed guarantees, making development of floatingmortgage system in our country slowly. In this thesis,I will study in the British as theorigin of floating charge system and the United States which leads the trend of worldsecurity interest, in combination with the property law of our country, through thecomparative analysis method, study floating charge system and fixed guaranteecompetitive rules in England and USA, providing some reference to perfect floatingchargeand fixed deposit rules in our country.The article is divided into three chapters:The first chapter introduces the connotation of both fixed and floating chargesecurity identification, border points and kept competing, and lists the types ofsecured floating charge and a fixed deposit of competition. Depending on the natureand characteristics of floating charge security interest of other established principlesof competition kept floating charge and a fixed handle two guarantees. Floatingmortgage system is different from the essential characteristics of a fixed mortgageguarantee is that people enjoy the freedom of normal business activities disposition,so its fixed deposit guarantee competition and to protect the rights of people floatingcharge normal operations disposition of collateral, that is, establish the principle offreedom of the normal conduct of operations disposition priority, as the firstpublicity (registration) principle exceptions. Another law in order to protect certainspecial interests, must be given special treatment to certain benefits, giving it priority over the pick.The second chapter discuss the priority contention between floating charge andfixed security created in the ordinary course,the introduction of a discussion of thenormal business activities of the mortgagor to establish fixed and floating chargesecurity deposit of competition. First, a comparative analysis of Britain, and theUnited States to define the scope of normal business, and repayment of subordinatedfixed and floating charge secured Britain and the United States arising from normaloperations when competing deposit, fixed guarantee the normal operation of thatgenerated in the priority floating mortgage. And analyzed two exceptions: situationsthat exist in the mortgage contract restrictive clauses, guarantees competing is thepurchase price of the gold deposit collateral. Constraints based on our floating charge"Property Law " normal business activities without prior establishment of thepurchaser, the introduction of a fixed guarantee of normal business activitiesgenerated priority over floating charge. And analyzed the two exceptions fixedmortgage guarantees established in the person of normal business activities: First,when the presence of restrictive clauses floating mortgage contract, the right ofpriority over the fixed floating charge security rights. Second, competing withfloating mortgage fixed deposit guarantees the purchase price when the gold isguaranteed. Even the existence of a floating charge restrictive clause in the contract,the purchase price of gold is also a priority of security rights in floating mortgage.The third chapter discusses the priority contention between floating charge andfixed security not created in the ordinary course, Britain stipulates that the priorities isdecided according to the published time outside the normal operation, but rules on thepublication of21days results in sequence confusion. America provides only a formof guarantee, which is guarantee "convention". No matter what kind of guarantee toset up, unified rules of the race remaining will be adopted. But to some real rights forsecurity has not been promulgated, their priorities is stipulated in accordance with theestablishment them. It is not only detrimental to the interests of a third person, butalso is against guarantee principles. The property law in our country regulates thefloating mortgage is a kind of general regulation of mortgages, floating mortgage and fixed guarantee racing to exist will adopt the competitive rules for general mortgageand fixed guarantee. Compared with Britain and United States, China regulaes thatwhen mortgage real rights exist together, the sequence will be decided according tothe order of wbeing promulgated, and establishes the unregistered real rights forsecurity, will be realized in accordance with the proportion of creditor’s rights, whichcan better safeguard the interests of a third person in good faith and conform to theprinciples of guarantee. |
