On Unchaining Of The Forbidden Of Fluidity And The System Reconstruction

Fluidity is forbidden in our country law because of the theory of justice and protection of the weak.Judiciary must observe this rule,but there are denunciations of the forbidden of fluidity in the world of jurisprudence theory.At the same time,judiciaries are trying their best to narrow the scope of this rule.Many countries or regions who had forbidden fluidity introspected the rule of the forbidden of fluidity and did some reformation.In summary,there is a tendency to unchain the forbidden of fluidity.We have to rethink about the rule of fluidity in our law.It is no problem that the forbidden of fluidity has its own reasonability,but this reasonability is limited.In fact,fluidity is the manifestation of autonomy of will and the efficacy of debt,and also good for the whole social economy.It is necessary to unchain the forbidden of fluidity for the development of the social economy.Firstly,lifting the ban of fluidity could lower transaction costs,improve transaction efficiency,and revitalize the transaction funds.Secondly,lifting the ban of fluidity is good for defusing the judicial dilemma.In fact,the sound of unchaining of the forbidden of the fluidity is louder and louder.However,unchaining the forbidden of fluidity doesn't mean indulge fluidity,after all,forbidden of fluidity has its own reasonability in some way.In order to release the ability and avoid the defect of fluidity,we can give liquidation to fluidity.In general,fluidity is allowed in the law,but when the value of guaranty is too much higher than the debt which is guaranteed by the guaranty,creditor need to return the part of the value of the guaranty which is too much higher when get the ownership of the guaranty which belonged to the guarantor.In order to make the fluidity has the effect against the third party,it is necessary to construct the registration announcement system.For the sake of discussing the problem clearly,the Paper divided to 6 parts.The first part mainly clarifies the meaning of fluidity and discriminate the reasons that fluidity is forbidden in our country law.The conclusion is that the forbidden of fluidity has its own reasonability,but this kind of reasonability is limited.The second part mainly analyzes the legitimacy of unchaining of the forbidden of fluidity,and points that unchaining of the forbidden of fluidity has some advantages.So,it is imperative to unchain the forbidden of fluidity.The third part mainly talks about the choice of route after unchaining the forbidden of fluidity.In the first place,introduce the legislation models of fluidity in foreign laws,and then introduce the system constructions of fluidity which were put forward by scholars.After the overall consideration,it is right to choose an eclectic route where it is necessary to regulate fluidity in the law,and it is inappropriate to indulge fluidity completely.The fourth part mainly talks about the system reconstruction of fluidity and put forward the legislative proposal about fluidity.The system reconstruction is that fluidity is allowed in general,but creditor should return the part of value of the guaranty which is too much higher than the guaranty when get the ownership of the guaranty.At the same time,because of the weak of the new system,it is necessary to construct the registration announcement system,and construct the rule of “without registration shall not be a defense against a third party in good faith.”The fifth part is the influence of the new system construction of relative industries,especially the pawn broking,the bank finance and the guarantee industry.The sixth part is the summary of the whole Paper.