Building Of The Transferring Guarantee System In China

The development of practices proves that the transferring guarantee system,which complies with the development of market economy and meets the needs ofcapital accommodation and chattel use, is a kind of guarantee system. As a realatypical guarantee system, it is actually formed from the reference from the trustbehavior theory in the Roman law by civil law countries, the effective combinationwith and summary of the trust behavior in the Germanic law, and the improvementof the jurisprudence theory. After the transferring guarantee appeared, it graduallyexperienced blame in such developmental stages as the misrepresentation, the breachof numerous clauses principle, and the prohibition of fluidity contract. The systemwas finally acknowledged by the case law. In the development of the transferringguarantee system, there are such typical ideas put forward by scholars who criticizeand correct the system as the ownership structure,the mortgage, the disguisedguarantee, the buying and selling and the trust transferring guarantee system.However, by now, the transferring system has been widely used by themanufacturing industry and relevant financial industries because it is the mostrelatively convenient and rapid method of guarantee and it gradually shows itsunique advantages in development. According to the statistics, currently, thetransferring system has been widely promoted and applied in German, Japan,America and other countries.Undoubtedly, at present, China’s development of market economy also needscapital accommodation and chattel use. Therefore, issues, such as whether thetransferring guarantee system which can meet the needs of development of suchkinds can form a real sense of culture in China or not, and how to fundamentallyestablish the transferring guarantee system in China, have constantly become theissues which must be studied at present. The main content of the paper is developedon the basis of the building of the transferring guarantee system in China.The first part briefly introduces the legal source of the transferring guarantee and the development status of the transferring guarantee in German, Japan andTaiwan. The second part begins to expounds on the aspects of the concept, the natureand the functions of the transferring guarantee. It introduces that the transferringguarantee has the characteristics of subordination, it belongs to the atypicalguarantee, and the target object is occupied by the collateral provider. It alsodemonstrates that with the globalization of economy, the transferring guarantee playsa role in simplifying the financing cost so as to avoid financing difficulties. The thirdpart mainly analyzes and states such content as the the construction of thetransferring guarantee system, defines the internal effect and external effect of thetransferring guarantee, and demonstrates the establishment condition and eliminationcondition of the transferring guarantee. The issues which need to be noticed in thebuilding of the transferring guarantee system are demonstrated: preventing the riskof the benefits of the third party, preventing the risk of the benefits of the set-upperson and the guarantor of the transferring guarantee, and preventing violence. Italso advocates that China should establish the transferring guarantee system in theform of special civil legislation. The fourth part mainly analyzes and demonstratesthe design of China’s transferring guarantee system and relevant content, builds thelegal structure of the transferring guarantee system in China, and theoreticallyclarifies the design of the system. The last part is an outlook on the development inthe future. In China, the study of the transferring guarantee is not sufficient. Thebuilding of the transferring guarantee system is not only necessary, but also available.China should enhance the theoretical study of the transferring guarantee system tobuild the transferring guarantee system with Chinese characteristics.