Research On Security Of Alienation

With the rapid development of the market economy,as a new and more flexible way of non-typical guarantee,the transfer guarantee is flourishing in the market transactions.Its manifestation is: through both parties at the same time to enter into the sale relationship and the loan relationship,the sale relationship for the loan relationship as a guarantee.The essence is to realize the purpose of repayment of secured creditor's rights by the transfer of the overall right of the collateral through the contract setting.The transfer guarantee has its unique legal structure and application mode.At the same time,because the assignment guarantee is a kind of irregular guarantee,it is necessary to fill in the loopholes in the system in time,unify and strictly regulate the system in order to make it clear.The wide existence of the transfer guarantee in reality and the application of diversification rules have reached the point that it cannot be ignored.It not only has the remarkable practice foundation,also has the unique system significance.Current into the guarantee law has clearly have a certain necessity and importance of the traditional civil law theory framework,for there are a lot of questions at present,guarantee must seriously consider the possibility of into laws guarantee,under the existing theory of judging conflicts with traditional theory point of view,the realistic choice of thinking into the law guarantee.This paper intends to take this as a clue,by studying the theoretical significance of assignment guarantee,measure its institutional value,and finally give corresponding Suggestions for the admission method of assignment guarantee.This paper mainly includes the following five parts: the first part is the introduction.It is pointed out that the current research in our country focuses on the theory and lacks the centralized identification of judicial practice and the in-depth definition of legal relations.The second part is to define the concept and nature of assignment guarantee.By sorting out the relevant theories at home and abroad,this paper sorts out the concept and characteristics of transferring and guarantee,studies the legal composition and nature of the transfer guarantee,discriminates and analyzes the differences between the transfer guarantee and traditional guarantee system and other relevant legal concepts,so as to clarify the legal structure of the transfer guarantee.The third part is about the dilemma and solution of the guarantee theory.Due to the differences in legal structure and application rules between the transfer guarantee theory and the traditional typical guarantee,there are many theoretical difficulties in the system of numerous clausus in China.In the face of this,from the legal interpretation and practical needs to crack one by one.The fourth part analyzes the current situation of legislation and judicature in China.In judicial practice,court precedents hold different opinions on the situations of the transfer guarantee.In judicial practice,there are some judgments on the existence of the transfer guarantee system,such as confirming that the contracts are true and effective and performed in accordance with the contract agreement between the parties,confirming that the contracts are fluidity but invalid,and confirming that the contracts are security of alienation and are disposed of in liquidation mode.When the legal relationship is consistent with the specific situation,the author analyzes various opinions and reasons of the judgment,so as to solve the practical problems pertinently.The fifth part puts forward some suggestions on the design of the specific system of the transfer guarantee.This part needs to use the method of comparative study,draw lessons from foreign legislation to legalize the assignment and guarantee,and at the same time,make regulations according to our country's current legislation loopholes and practical problems,so as to put forward suggestions to improve the design of our country's security of alienation system.