Research On The Effectiveness Of Liquid Contract

Based on the legislative succession,China follows the legislative tradition of the civil law system and negates the validity of fluidity contracts in the Property Law,the Security Law and related judicial interpretations.However,in the era of highly developed market economy,efficiency of civil subjects and strong demand for financing,there are many loopholes in the legal basis of the negation of fluidity contract,and the court can not unify the results when facing “new guarantee cases”.Therefore,in the environment where thelegal theory is becoming more scientific and the legal system is becoming more and more sound,the traditional legislative and academic views should be re-examined,so as to make the superstructure of the law and the economic basis of the synchronization,and guide the development of economic practice.This paper points out that the legislation of fluidity contract in China has been out of touch with practice through the problems in judicial trial and guarantee system under the mode of prohibitionist legislation.On the basis of questioning the traditional negation point of view,the necessity of recognizing the validity of the fluidity contract to solve such problems is expounded.At the same time,the paper gives the argument that the fluidity contract conforms to the principle of civil law autonomy effectively and can promote the unification of our legal system.The article is divided into five parts:The first part,introduction.It mainly introduces the research background and significance of this article,the literature review of fluidity contract theory,and the research methods of this article.The second part,the problem of negating the validity of fluidity contract.This part proposes that under the current legislative model,on the one hand,in order to avoid the application of fluidity contract,the parties created “new security methods” such as assignment guarantee to guarantee the performance of the debt in order to obtain financing,however,the legislation prohibits the fluidity contract,and the new guaranteemethods such as the assignment guarantee have not been established in the legislation,therefore,the interpretation of the legal relationship and the application of the legal provisions in the court hearing such cases are quite different,resulting in different judgments of the same case.On the other hand,the traditional realization procedure of security right in the current law is complicated and inefficient,which makes the creditor pay high cost to realize the security right.The third part,questioning the jurisprudence of negative theory of fluidity contracts.This section questions the theory of negating the validity of fluidity contracts based on China 's current economic reality,it is concluded that the validity of fluidity contract is not inconsistent with the nature of real right of security and will not lead to the loss of state-owned assets,and it is deduced from this that the theoretical point of view of the negation of fluidity contract cannot be justified.The fourth part,effective Jurisprudence analysis of fluidity contracts.This part theoretically analyzes the effectiveness of fluidity contract from the two aspects of necessity and feasibility.In the necessity,it discusses that determining the validity of the fluidity contract on the one hand can provide the court with a unified standard for the application of new types of guarantee cases,to avoid the situation of different judgments in the same case,on the other hand,the realization cost of real right of security can be reduced;In the feasibility,the validity of the fluidity contract is discussed on the one hand,and it conforms to the principle of autonomy of civil law,on the other hand,it can clear the obstacles for China's pawn rights,pawns,transfer guarantees and other systems into the guarantee legal system.The fifth part,effective legislative construction of fluidity contract in China.This section compares and analyzes the legislative models of fluidity contracts in various countries?regions? in the world,it is concluded that the liquidity contract legislation in the world is developing in the direction of lifting the ban.Therefore,on this basis,the feasibility analysis of China's adoption of effective legislative model was carried out,and the legislative scheme and auxiliary system of effective model was proposed.