Fluidity Guarantee Clauses' Prohibition And Permission

The buy-sell guarantee has been a new type of guarantee in recent years;however,due to the lack of relevant provisions,the courts in different regions had different understandings of this type of guarantee,and the complexity of the actual cases,which led to the different identification of the effectiveness of this type of case by different courts.Investigating the reasons,we could find that the dispute of the effectiveness of the buy-sell guarantee was closely related to the controversy of whether permit the fluidity guarantee items.Buy-sell guarantee cases were inevitably connected with the fluidity guarantee issues;confronted with the law strictly prohibiting fluidity guarantee,when the courts tend to admit the validity of buy-sell guarantee,it had to make a variety of complex explanation to circumvent the application of the provisions which strictly prohibit the fluidity guarantee.This also exactly reflected that the prohibition of fluidity guarantee had become an obstacle to the development of social economy and judicial decisions.Therefore,before settling the validity dispute of the buy-sell guarantee,it was necessary to settle the dispute of whether permit the fluidity guarantee.The first part of the article firstly clarified the concept of the fluidity guarantee clause,and explained the reason why the concept of "fluidity guarantee clause" was more accurate and reasonable in substance and form.Then,the characteristics of the fluidity guarantee clause were summarized.First,the fluidity guarantee clause existed in accordance with the guarantee contract;second,the stream guarantee clause was made by the parties before the expiration of the debt performance period;finally,the fluidity guarantee clause was the pre-disposal of the collateral's ownership between the parties Agreement.Afterwards,it summarized four legislative models on the fluidity guarantee clause in the world,namely prohibitionism,divisionism,laissez-faire and permissionism.The second part of the article introduced the concept of the buy-sell guarantee,and then summarized the characteristics of it.There were interrelated loan contracts and sale contracts in the buy-sell guarantee relationship.The parties concluded the sale contract for the purpose of guarantee.It was a pre-disposal of the ownership of the subject matter of the sale contract.The performance of the loan contract affected the performance of the sale contract.A summary analysis of the buy-sell guarantee case was conducted.The controversial focus of the buy-sell guarantee cases was mainly on the qualitative and effective aspects of the buy-sell guarantee contract between the parties.Regarding this,different courts had different views.Through analysis,it was concluded that the different opinions of the court were actually complex explanations to circumvent the application of the provisions which banned the fluidity guarantee clauses.The buy-sell guarantee was inevitably connected with the issue of fluidity guarantees.To solve the problem of inconsistent opinions in the case of buy-sell guarantees,first The issue of disputes over the effectiveness of fluidity guarantees should be faced.The release of the ban on fluidity guarantees can solve the problem of contradictions in the judgment of buy-sell guarantees.The third part of the article systematically analyzed the disputes between the prohibition and the permission of the fluidity guarantee clause from five dimensions:legal value,property rights system for security,particularity of commercial law,changes of social development,and relevance to related systems.Although the prohibition of fluidity guarantee protects the fair value of the law,the permission of fluidity guarantee did not necessarily mean the destruction of fair value,but took into account the fair value while maintaining the value of freedom and efficiency.Secondly,the fluidity guarantee clause was also to urge the debtor to pay the debt and guarantee the realization of the creditor's right,which did not violate the essence of the real right of security.The release of the fluidity guarantee was also to provide a connection point between the atypical guarantee and the legal guarantee,which was conducive to the improvement of the security system in China and the realization of the diversification of security methods.It was also necessary for the development of commodity economy to permit the fluidity guarantee.The particularity of commercial legal relations had a stronger demand for the fluidity guarantee.Under the system of integration of civil and commercial affairs,civil legislation should also take it into consideration that commercial activities might have special needs.Discount settlement,debt payment in properties and fluidity guarantee were closely related,but they were usually treated differently in fact,which made people have to rethink the prohibitive provision of the fluidity guarantee.The forth part of the article concluded that there was no difference between giving up eating for fear of choking and prohibiting all fluidity guarantee clauses.Only by improving the relevant system of fluidity guarantee clauses,can its advantages of efficiency and convenience could be given play to,and a series of problems caused by its completely opening could be avoided,which was the most ideal choice.The most important point for the improvement of the fluidity guarantee system was to complete the restrictive provisions of the fluidity guarantee under the premise of recognizing the effectiveness of it.For this reason,the system of publicity and liquidation should be established for fluidity guarantee clauses.