The Effectiveness Of Floating Charge

Floating charge is a representative security interest in the movable security system of the Civil Code.On the one hand,it includes future property and expands the scope of collateral;on the other hand,it establishes the rule buyer in ordinary course of business which increases the efficiency of the use of collateral.This article focuses on the revision of the floating charge system in the Civil Code,upholding the thinking of explaining the current law,and at the same time learning from the method of Rechtsdogmatik,trying to conduct a systematic study of floating charge.The first chapter of this article introduces the reconstruction of the effectiveness of floating charge in the Civil Code and a summary of existing research,which puts forward the question "the effectiveness of floating charge" that this article intends to study.The effectiveness of floating charge mainly involves obtaining the confrontational effectiveness of floating charge,the confrontational effectiveness of unregistered floating charge,the registration principle of floating charge,and whether the effectiveness of floating charge can attach to the proceeds.Among them,there are two exceptions to the effectiveness of floating charge,including the rule of buyer in ordinary course of business and purchase money security interest.The second chapter of this article discusses the confrontational effectiveness of floating charge and whether the scope of floating charge can attach to the proceeds.The obtaining of confrontational effectiveness of floating charge in the Civil Code adopts American crystalism,and the registration of floating charge is the time point for the effectiveness of confrontation.The time for the registration of future property security and the obtaining of confrontational effectiveness can be before the attachment of the security interest,and the provision of security for future property should be the principle provisions of the movable security system.Floating charge are not registered that has only weak confrontational effectiveness.Floating charge is not prior to security interest created behind,enforcement claims and bankruptcy claims.Floating charge is prior to malicious buyers and malicious specific property creditor with conflict to floating charge.The registration confrontation of floating charge is different from the registration confrontation of special movable property.The registration principle of floating charge is different from the comprehensive publicity of real estate registration.Floating charge adopts the method of partial registration and publicity,which has only limited confrontation effectiveness.The principle of floating charge registration provides a theoretical basis for our country to build a formalized movable property security registration system.The Civil Code separately stipulates the proceeds rules of the collateral based on the different value changing ways of the collateral,and does not require a full transplant of the proceeds rules in the comparative law.The lack of a proceeds rule in the Civil Code is that the effectiveness of floating charge shall be as good as the proceeds from the sale of the mortgagor under the rule of buyer in ordinary course of business.This rule can be explained by the expansion of the subrogation rule of Article 390 of the Civil Code.The third chapter of this article discusses the exception rules for the confrontational effectiveness of floating charge,and introduces the rules of buyer and purchase money security interest.The prerequisite for the application of the rule of buyer is the collective security of movable property,in the field of collective security of movable property,there is no need to distinguish between general movable security and floating charge.The agreement prohibiting the transfer of security property cannot preclude the application of the rule of buyer in ordinary course of business.There are three applicable requirements: ordinary course of business,reasonable payment,and acquisition of the subject matter.In terms of interpretation,it is necessary to adopt a method of restrictive interpretation and strictly apply the rule of buyer in ordinary course of business.Purchase money security interest can be expanded to apply to transactions of retention title,but it should not be expanded to transactions of finance lease.