| The promulgation of the Civil Code of the People’s Republic of China(hereinafter referred to as the "Civil Code")is a very big step in the field of civil law in China.It is of great significance to the internal coordination in the field of civil law.As the first legal code since the founding of the People’s Republic of China,Civil Code naturally has many novel system designs and ideas.In particular,a very significant change in the guarantee system of the Civil Code is that it clearly points out in paragraph 1 of Article 388 that "a guarantee contract includes a mortgage contract,a pledge contract and other contracts with the function of guarantee".This article·can be said to maximize the scope of guarantee contract and introduce the view of substantial guarantee into the system of China’s Guarantee Law,thus facilitating the legal regulation of a variety of relatively new forms of guarantee represented by assignment guarantee.The first part of this paper will analyze the transformation of Civil Code to the view of substantial guarantee.The most important characteristic of the view of substantial guarantee in the provisions of the Civil Code is to give consideration to both formalism and functionalism.Formalism means to distinguish various types of real right of security and to set up different rules respectively.Functionalism,on the other hand,applies uniform rules to guarantee methods with guarantee functions without distinguishing the real right of security.The theoretical basis of formalism lies in the dichotomy of creditor’s right and real right.Our country has always been one of the countries that take debt and property to be divided,therefore,our country all take the formalism legislation view.Formalism is indeed a better choice when the economic development is backward or the financing needs are not great.But now,the increasingly developing economic factors and the expanding demand for financing have exposed the shortcomings of the closure of formalism.The best evidence of the above situation is that the vast number of civil and commercial subjects widely use a variety of atypical guarantee methods.Substantial guarantee view is based on the result of the transaction rather than the form or the way of the occurrence of the right,which has many advantages such as eliminating implicit guarantee.The second part is the analysis of the assignment guarantee system.As one of the most widely used guarantee methods in recent years,assignment guarantee has experienced various difficulties in its legal process.Under the view of substantial guarantee,the connotation of assignment guarantee should be developed.First,the assignment guarantee is the guarantee form of the debt guaranteed by the sale contract.The abolition of the distinction between typical guarantee and atypical guarantee is of great significance to the unification and establishment of the internal rules of the subsequent guarantee system.Second,assignment guarantee belongs to guarantee of ownership in nature.Previous studies have not involved this aspect too much,but should be paid attention to in the view of substantial guarantee.In the view of substantial guarantee,the recognition of assignment guarantee means that the scope that can be used as its target has been implied in the regulation of such guarantee mode.At the same time,this kind of approach,whether in type or in amount,will increase the property available for security of the majority of civil and commercial subjects,which has a catalytic effect on financing.At the same time,the paper also analyzes the integration of the assignment guarantee and guarantee system,including the relationship between the assignment guarantee and the principle of legal right in real estate,the prohibition of collateral and the invalidity of false acts.The third part is the analysis and evaluation of the relevant legal provisions of assignment guarantee under the view of substantial guarantee.On the level of legal provisions,including the choice of the way to realize the assignment guarantee and the handling of the demand for the circulation of the assignment guarantee.In the realization way,the relevant legal provisions only recognize the disposition of the way.However,the attribution mode should be one of the inherent factors of the assignment guarantee,and under the view of substantial guarantee,the clause of "no current charge" has changed greatly,which has a tendency of easing to a certain extent.Therefore,we should respect the result agreed by the parties,and on the basis of fair valuation,we can adopt the attribution mode to realize the assignment guarantee,rather than negate it blindly.The use of the assignment guarantee itself indicates its demand for circulation,so it should not be directly negated,but should be guided under the view of substantial guarantee.The fourth part is the analysis and suggestion of the judgment rules of assignment guarantee.In order to investigate the judgment rules under the view of substantial guarantee,the author extract the relevant cases newly issued in 2021,and made an analysis on this basis.It includes three parts:the study of the publicity of real property assignment guarantee,the Bona Fide acquisition of assignment guarantee and the application of assignment guarantee in bankruptcy procedure.As a result,the relevant provisions of equity pledge can be used in assignment guarantee of shares.At present,due to the universality of advance notice registration,it is not necessary to make a one-size-fits-all regulation on the publicity of real estate assignment guarantee.The effect of completion of publicity may occur when the registration system such as advance notice registration meets the conditions of this registration.However,in the long run,it is necessary to make the announcement of the assignment and guarantee more transparent with the help of the real estate register.The court has made a judgment on the Bona Fide acquisition of security,and has made a detailed analysis of it,which can provide a basis.As for guaranty,it can be fully used in many systems leading by bankruptcy procedure.Its rights in bankruptcy procedure are based on the right of separation.As for the issue of the right of defense of the security right,when the guarantor is the bankrupt,it should be dealt with differently according to the different possessor.Namely,if the debtor performs the debt assignment guarantee,it will be attributed to extinction,and the debtor can exercise the right of recovery to retrieve the subject matter,and the proceeds from the performance of debt are included in the bankruptcy property.However,when the debtor fails to perform the debt,the bankruptcy administrator may apply to the court for the auction of the subject matter to pay off the debt in priority.In addition,in the case of no publicity,it can not be against the third party,should be treated as ordinary creditor’s rights.And the conveyance guarantee generally does not satisfy the exercise of the cancellation right for the "transaction at a significantly unreasonable price".To sum up,based on the connotation analysis of substantive security view and assignment guarantee,this paper tries to conduct a comprehensive analysis of the regulation of assignment guarantee under the view of substantial guarantee from two aspects of legal provisions and adjudication rules. |
