The Study Of Trading-Based Guarantee's Legal Structure And Validity

With the market economy development and the urgent need of private financing,many type of new atypical property rights have emerged.Trading-based guarantee has been used extensively because of its convenient and efficient features.To some extent,it eased the plight of small and medium-sized enterprise,but from the perspective of judicial practice,it is still difficult to accept the legal force of sale-based guarantee.The principle of Numerus clauses and the ban of fluidity contract choked the development of atypical property rights.Since the civil code has promulgated,all of the atypical property rights still have no legal regulation to accept its legal force.Although the legal provisions by the supreme people's court have been introduced for years,but it only restrain the sale-based guarantee from procedure regulation,deliberately avoid explaining the legal force of sale-based guarantee,so far,the the cases of sale-based guarantee are still frequently,the judgment results are always inconformity.From the real right system of our country,under the background of the absolutely numerus clauses and the ban of fluidity contract,I believe that even the Trading-based guarantee have property and creditor nature both,the true consensus between parties is guarantee instead of trading.So Trading-based guarantee should be security interest and belong to property system.I deem that trading-based guarantee has priority of compensation and comes into effect without the real right's shift or registration.This article will systematically analyse the Numerus clauses,demonstrate the Numerus clauses relief theory is the best way to solve the conflict between the Numerus clauses and atypical property rights.Then base on the nature of sale-based guarantee,dissect it and find a way to explain the possibility of applying to relief the ban of fluidity contract.Meanwhile,by thinking of the sale-based guarantee's character of real rights and creditor's rights,combining practical experiences with the sale-based guarantee,try to find a way to accept the legal force of it,then achieve the aim of restraining and providing the sale-based guarantee.