Study On The Release Of Fluidity Contract In China

The fluidity contract refers to the agreement made by both parties when the mortgage contract or the pledge contract is concluded.If the debtor fails to fulfill the obligation of repayment on time at the expiration of the debt performance period,the ownership of the mortgaged or pledged property directly belongs to the creditor's agreement without other procedures.Roman law first established the prohibitive rule of fluidity contract,which has a far-reaching impact on future generations.Continental law countries represented by Germany inherited the prohibitive rule.Civil law theory is deeply influenced by the continental law countries in China.Fluidity contracts are also prohibited.In the Property Law and the Guarantee Law,provisions are adopted to prohibit the formation of fluidity contracts.However,with the development of the times,new situations and new demands have emerged in social practice,which is different from the background of the Roman era when fluidity contract prohibition appeared.Nowadays,in order to meet the needs of economic development and give full play to the efficient and convenient characteristics of the fluidity contract to promote the commercial operation and financing,fewer and fewer countries continue to adopt a strict Prohibition attitude towards the fluidity contract.Some countries and regions adopt the legislative model of fluidity contract permit,and some countries and regions have completed the process from prohibition to lifting of the fluidity contract.It is a general trend in the world that the ban on the fluidity contract is lifted.Civil law scholars in our country have also noticed this trend early.From the beginning of the legislation of the Property Law of our country,the voice of advocating the lifting of the fluidity contract has never stopped,and even shows a more and more strong momentum.At this time of revising the Civil Code of China,most of the legislative proposals of civil law experts and scholars on real right compilation of civil law refer to the lifting of the ban on fluidity contract.In the draft compilation of real rights in civil law,there have been attempts to lift the fluidity contract.Although it ended in failure,it still shows us the hope of lifting the fluidity contract in the future.Hopefiully,it is worthwhile for us to continue to explore and make efforts to comply with the trend and strive for the early realization of the lifting of the ban on fluidity contract in our country.This thesis is composed of four sections,the first section describes the concept and characteristics of fluidity contract,and comparatively analyses the situation of fluidity contract in foreign legislation;the second section starts with the legislative status and judicial practice of fluidity contract in China,summarizes the burdens and troubles caused by the prohibition of fluidity contract in judicial practice,and discusses the necessity of lifting the prohibition of fluidity contract in China;The third section combs the controversy about the existence or abolition of the prohibitive rules of fluidity contract from different viewpoints,and shows the reasons why this article agrees with the lifting of the prohibitive rules of fluidity contract;The fourth section combines the thinking of Chinese legal scholars,and puts forward the idea of the way of lifting the fluidity contract and the relevant regulations after the lifting of the ban,in order to benefit the future lifting of the fluidity contract in our country.