Research On The Determination Of The Validity Of The Assignment Guarantee

The transfer guarantee has many advantages,such as increasing the possibility of financing guarantee transactions,eliminating the risk of creditors' trust,and fully guaranteeing "the best use of everything".And the transfer guarantee has the flexibility of allowing third parties to freely join the legal relationship of granting guarantees and allow the use of liquid movable property to establish a guarantee,and have gradually become the new favorite method in the field of guarantees.However,as a system with obvious advantages,the validity of concessionary guarantees has caused widespread controversy in the academic field and has not ended.According to the spirit of statutory mitigation of real rights and the expansion of interpretation in accordance with legislative intent,concessionary guarantees do not violate statutory property rights.Purposeful reduction of the "liquidity" ban can be found that the transfer guarantee has nothing to do with the ban.As one of the important factors in the validity determination,the scope of the transfer guarantee and the subject matter is to promote the debtor when the agreement is unknown.To maintain a balance between the rights and obligations of both parties,the ownership of the interest and the property will be different according to the time of occurrence.In the field of practice,the validity of the transfer guarantee is also not very optimistic.From the perspective of time,although the proportion of the validity of the transfer guarantee has been increasing year by year in the court judgments,a considerable part of the valid judgments failed to elaborate the reasons.And the proportion of invalid determinations is still large.From the perspective of the geographical dimension,the transfer guarantee disputes are mainly concentrated in the eastern coastal areas,and the division between regions and even within the regions is large,resulting in different judgments in the same case.Frequent phenomena have seriously damaged judicial authority.In addition,in recent years,several typical cases issued by the Supreme People's Court have very different rulings,and the ruling conclusions are mutually negative.The judicial interpretations issued can neither solve the physical problems such as the determination of the validity of the contract,nor the trial when the debtor requests the confirmation of the invalid contract Procedural issues.Although the release of the Minutes of the National Commercial and Commercial Trial Work Conference alleviated the above problems to a certain extent,its function was affected by its low effectiveness.Therefore,it is important to find an appropriate solution in time to determine the effectiveness of the guarantee.Examining the current legislative plan and referring to the codification of the Civil Code,it is basically impossible to legislate the transfer of guarantees.Written into the law hastily will only cause various problems,contrary to the spirit of scientific legislation,and the transfer guarantee system will become rigid.Therefore,this article has abandoned the legislative method of granting guarantees,and turned to find a proper interpretation path for the determination of the effectiveness of guarantees under the current legal framework.Whether the parties' agreement is conducive to the fair and just protection of the legitimate rights and interests of the parties as standard,the court may support the creditor to obtain the ownership of the subject matter according to the transfer of the security contract,or allow the creditor to realize the creditor's right according to the special procedures for realizing the security property right,and at the same time focus on strengthening the protection of the rights of third parties in good faith.This is an expedient measure to resolve the current chaotic situation in which the effectiveness of the guarantee is determined,and the follow-up will also have to rely on the Supreme People's Court to formulate relevant judicial interpretation laws to give legal status to the transfer of guarantee.