Discussion On The Lifting Of The Ban On The Fluidity Clause

After the founding of the People’s Republic of China,the legislation strictly prohibited the validity of the fluidity clause,from the "guarantee law" to the "property law" and then to the current "Civil Code",which has never wavered.However,the reason for the prohibition of the fluidity clause is not sufficient.Chinese scholars Shengping Gao,Mingsuo Wang and Peng Sun have put forward constructive opinions on the lifting of the ban on the fluidity clause,the trend of foreign legislation is gradually changing,the voice of lifting the ban on the fluidity clause is growing,and the number of countries adhering to the strict ban on the fluidity clause is decreasing.In the traditional point of view,the main reason for prohibiting the fluidity clause is that the debtor is often in a disadvantageous position when signing the fluidity clause,and the creditor obtains improper interests through the realization of the fluidity clause,which leads to the damage of the debtor’s interests and the increase of social instability.However,with the development and evolution of society,the change of the conditions of social transaction subjects and the gradual perfection of the social security system,the prohibition premise of the fluidity clause has also changed.In today’s society,debtors are not necessarily in a disadvantageous position: 1.The number of financing channels available to debtors has greatly increased,which makes it difficult for creditors to take advantage of the fact that debtors have few debt objects and financing is difficult.2.More and more debt subjects are business subjects,so the possible risks of guarantee terms are clear,and the decision-making is more cautious.3.With the improvement of social security system,people have more channels to help when they are in urgent need of relief.On the contrary,it can reduce the cost of guarantee,improve the efficiency of financing,alleviate the financing difficulty of market transaction subjects,coordinate the inconsistent provisions between it and the legal system of pawn,and promote the further development of guarantee theory.There are also some problems in lifting the ban on the fluidity clause without restrictive measures,such as the loss of state-owned assets and the damage to the interests of debtors and other creditors.Therefore,lifting the ban on the fluidity clause should be supplemented with certain restrictive measures to maximize its advantages.For example,the setting of liquidation obligation can prevent excessive interest imbalance between the parties,the setting of registration confrontation system can make the fluidity clause produce publicity effect,and the setting of redemption right system can make the debtor retain the final relief way.This paper analyzes the current judicial situation of the fluidity clause,finds out the crux of the problem,and draws lessons from the relevant legislative experience of foreign countries,and provides some system design suggestions for the lifting of the ban on the fluidity clause in China.