Reflection On The Effectiveness Of Fluidity Clause

The fluidity clause originated from the ancient Rome law and improved with the evolution of the guarantee system. There are three legislation doctrines in today’s legal system: prohibition doctrine, permission doctrine and liberalism doctrine. After reform and opening up, China has pursued the strict prohibition doctrine, which strictly denied the fluidity clause, which can be embodied in today’s "Guaranty Law", "Property Law". Based on the traditional theory scholars’ view, the prohibition of fluidity clause infringed the creditor’s dominant position as well as the interest of other beneficiaries. And corresponding to damage the interests of other creditors, and our business with integrity is not compatible, so to better safeguard the fairness and stability of market transactions, the legislation of our country must to of fluidity clause be prohibited. With the development of economy, blindly denying all the fluidity clause seems groundless. In recent years, France and China’s Taiwan region of fluidity clause began to apply, such as the Taiwan scholar Xie Zaiquan based on limiting the intervention of free contract, who stated the reflection of the fluidity caluse. Nowadays, the validity of the fluidity clause would not necessarily lead to the imbalance of security interests and the violation of public order and good morals. In return the fluidity clause has impact on reducing transaction costs, and playing a positive role in promoting the incomparable financing efficiency. Therefore, our legislation should not deny the validity of absolute fluidity clause, at the same time, improving the registration system, which would be better to promote the autonomy of private law, and improve the guarantee function.This paper is mainly divided into three parts:The first part of the current legislation prohibiting liquid and theoretical basis.The first is to clarify the clause of the different countries for liquid title, defining the clause of the basic concepts and contents. Followed by the current legislation as well as the theoretical basis of liquid on the clause:First, protect the interests of the debtor.Second, the balance between the interests of secured property rights of man and other creditors.Third, the maintenance of the essential function of a security interest.Fourth, closely related to the integrity of the construction business.But more and more difficult to gain a foothold in today’s rapid economic development grounds liquid ban provisions,nor with the current market transactions for financing the pursuit of efficiency.And more, it is a security interest in the development of obstacles.In the last part of the liquid will be to highlight the status quo in clause of judicial practice by small cases.The second part, two legal provisions for liquid legislative evolution.In Roman law as the axis of civil law to prohibit doctrine,mainly represented by Germany.But with the economic development and guarantee system has improved steadily,in civil law in France, Italy have already begun liquid ban provisions.In Germanic law as the axis of the common law in clause of the validity of the main fluid taken licenses doctrine or liberalism.So in the end of this part, legislative evolution articles will be two legal provisions of the fluid clause,and our country should be reference.The third part, reconstruction of fluid clause legislation.Through the first two two-part article on the rationality of reflection, this chapter will be reviewed.For the theoretical basis of the current provisions prohibiting liquid criticize.Secondly, the comparison of the provisions of the Taiwan region for liquid ban,discussed in clause of liquid rationality lies.First, the legal level, recognized the effectiveness of the legislative provisions fluid for the parties to respect the meaning of freedom, highlighting the private property of civil law.Second, the economic level, in line with the terms of the current era liquid people for financing the pursuit of efficiency.Thirdly, there are provisions of its liquid deep historical roots,its Composition and Value Orientation and System of "foreclosure of pawn" principles greatly in common.Therefore, not only the effectiveness of the provisions approved liquid in line with our tradition, but also for class unity and reconciliation between the guarantee system.Fourth, in line with the development trend of Guarantee System.Security interest is no longer simply limited function security claims to achieve, which is to provide credit guarantees to promote more financing.In addition,Recognition of the effectiveness of fluid is the way to make the creation of our country in the future and guarantees.The last chapter is specific provision for fluid system design.First, we must modify the existing provisions of the legislation for the liquid should be taken to permit doctrine legislative model,followed by liquidation system, registration system to build a good protection against the appearance of its drawbacks,balance between the interests of both parties and with other creditors, in order to better play the role of liquid secured financing clause.