The Choice For Legislative Path Of Transferring Guarantee System In China

Since the compilation of the "Property Law",the academy began to call for the promulgation of guarantees,until the Supreme People's Court promulgated in 1950,,the Supreme People's Court on the trial of civil lending cases applicable to a number of issues"(hereinafter referred to as "civil lending judicial interpretation")Article 24,China's legislation to ensure that the transferring guarantee has taken a crucial first step,but the provisions of the provisions of the scope is too narrow,but also far from being able to adapt to the needs of the community,so I try to compare the different analysis Get the path of the transferring guarantee legislation,so as to find a suitable legal path for the development of guarantees in China.This paper first demonstrates the legal status and nature of the transferring guarantee and compares the current situation and the research results of the foreign legislation,so that the path choice of the transferring guarantee legislation should start from two aspects.First,the legal status of concessions to determine whether the transferring guarantee in the future of our country is able to flourish or gradually replaced,custom law and statute of the two paths to the choice of the legal status of the transferring guarantee of a great impact,it should be comparative analysis The advantages and disadvantages of these two paths are the appropriate choice for the legislative path to be secured.Second,the nature of the transferring guarantee is closely related to the legislative path.The nature of the transferring guarantee under the law of property law should conform to the "security right constitution".The nature of the transferring guarantee under the contract law should be consistent with the "ownership structure"The nature of the transferring guarantee and the nature of the transferring guarantee,our guarantee should be in the property law and contract law path between the appropriate legislative path.Therefore,the author analyzes and chooses the legislative path of the transferring guarantee from these two levels in turn.First of all,this article compares the advantages and disadvantages of customary law and written law path,and points out that the disadvantage of giving way of guaranteeing customary law lies in the inability to provide clear legal basis for judicial trial and economic activities,which will make the transferring guarantee guarantee the state can not be.And the path of grammar can not only promote the development of new financing channels,but also can make up for the shortcomings of China's guarantee system.Therefore,it is imperative that the customary law path of our country has been unable to meet the needs of the current economic life.Secondly,if the legislation of the promulgation and guarantee is made,it should find the path of the law of the department,the law of property law and contract law,which is suitable for the transferring guarantee.Therefore,by comparing the advantages and disadvantages of the two paths,If the law of property law is used,it can not only resolve the legislative dilemma existing in the real right law,but also conforms to the habit of the atypical guarantee legislation,Therefore,China's concessions should not only abandon the customary law path,but also in the property law and contract law path selection,the choice of contract law as a guarantee of our legislative path.