| Nowadays,with the development of infrastructure construction,especially some large infrastructure projects which have a large financing demand,by using the franchise model,the pledge of franchise usufruct right is widely used in practice,and repeatedly mentioned by various policy documents.However,the pledge of franchise usufruct is still making no progress because of the confusion of its concept and its pledge system.There is no clearly concept of franchise usufruct defined in theory and practice,so franchise usufruct is often confused with other rights.In terms of legislation,there is no effective regulation on pledge of franchise usufruct.In the judicial practice,the legal nature of franchise usufruct right is chaotic,the realization way of its pledge is disordered and the realization risk is large.The direct cause of the difficulties in franchising usufruct pledge is the discord between two sets of pledge system.The deep reason is that we don’t know whether the mortgage of franchise usufruct shall be separately legislated,in other word,the concept of franchise usufruct and whether usufruct of franchising can be pledged are not clear.The definition of the franchise usufruct right in the theoretical and practical circles is often unclear,and it is often confused with other rights such as accounts receivable,which leads to confusion in the court’s judicial judgment and the realization methods are also diverse.The confusion about the pledgeability of the franchise usufruct right also increases its realization risk.To solve the practical dilemma of franchise usufruct right pledge,it is necessary to clarify the meaning and pledgeability of franchise usufruct right,and build a complete and unified pledge system.Franchise usufruct rights cannot be covered by other rights,they are not equivalent to accounts receivable or real property usufruct rights,and have the characteristics and value of pledgeable rights.Therefore,compared with the latter pledge system which is based on the inclusion of franchise usufruct rights in accounts receivable,a pledge system that separately regulates the franchise income right is more appropriate,which requires adjusting its relationship with the Numerus Clausus Principle.The strict Numerus Clausus Principle cannot adapt to the current deepening of financial innovation,and it is the general trend to alleviate the Numerus Clausus.Because the General Principles of Civil Law and the Civil Code(Draft)adhered to adopt the strict Numerus Clausus Principle,the principle can only be mitigated by legislative interpretation,and the scope of the"law" in the Numerus Clausus Principle should be expanded through the legal interpretation of the NPC Standing Committee.To grant the State Council the use of administrative regulations to regulate new property rights,including franchise revenue rights,to clarify the feasibility of independent pledge of franchise revenue rights and its establishment and realization system,and to abolish the original normative documentsThis article is divided into four parts.Firstly,this part is about the franchise usufruct right.The analysis shows that the franchise usufruct right is different from the accounts receivable,charging right,income right or real estate income right.The second part is mainly based on the judgment documents and normative documents The analysis shows that there are confusion in the nature of franchise usufruct right in practice,various ways and relatively high risks of implementation.The direct reason is the coexistence of the former and latter systems,and the deep reason is the confusion about the feasibility of establishing a franchise usufruct right pledge,that is,the meaning and pledgeability of the franchise usufruct right is unknown.The third part is mainly analyze the old and the new pledge system,and in conclusion,the franchise usufruct right can be pledged,because of the characteristics of rights and the value of pledge.The finally part mainly discusses how to solve the above dilemma. |
