Judicial Application Research For Transferring Guarantee

The transferring guarantee provides great convenience to our economic and social life,which has become one of the important methods of financing for small and medium-sized enterprises in China.However,the contradiction between the transferring guarantee and traditional real rights for security in terms of theory and the lack of clear definitions for related concepts of transferring guarantee in China’s current legislation are easy to cause the imperfection of rules of judicial application for transferring guarantee and the chaos of judicial application.Furthermore,business environment and order are also likely to be damaged.Therefore,there is room for further study on the judicial application of transferring guarantee.Based on existing legal provisions including Article 71 in Proceedings of the Ninth National Judicial Work Conference(Law [2019] No.254),Paragraph 1 of Article 388 in the Civil Code,Article 68 in Judicial Interpretation of Guarantee System in Civil Code,and Article 23 and 24 in both 2015 and 2020 Judicial Interpretation of Private Lending,this paper conducts empirical analysis combining with judicial examples of transferring guarantee litigation,summarizes the change of courts in standpoint and main problems in judicial application of transferring guarantee,and provides corresponding suggestions of judicial application based on legal transplantation and localization,hoping to find solutions to the plight of judicial application for the guarantee.The paper includes four parts.The first part introduces the research background,reviews the research status at home and abroad,summarizes the legislative situation and model of transferring guarantee and the value research of transferring guarantee system,and analyzes differences between transferring guarantee and typical guarantee and its own unique value.The author believes that the former compensates for deficiencies of the latter,which enriches China’s system of real rights for security,with obvious advantages in providing legal guarantees for the optimization of business environment.The second part analyzes related concepts and clearly defines the transferring guarantee.It discusses definition,components,characteristics and quality of transferring guarantee,and concludes that it is not allowed to assign a third party as a creditor of transferring guarantee in the mainland of China,and the real estate is also not excluded in objects for transferring guarantee.In this part,the author mainly makes a summary based on academic understanding of transferring guarantee,and holds that the standards for the establishment of transferring guarantee are the change of rights and the formal possession of right holders.The third part mainly analyzes the change of judicial standpoints for transferring guarantee and its main problems.It summarizes related judicial examples of transferring guarantee litigation,in order to clarify the trend and existing problems of judicial application for transferring guarantee,and put forward specific suggestions of judicial application.First of all,this part analyzes the relatively chaotic stage,the stage of trying to give legal status and the recognition stage of partial judgment rules for transferring guarantee from the perspective of the change of its judicial application.For example,at the relatively chaotic stage of judicial application,different judges make different judgments,facing similar cases of transferring guarantee.Some courts contend that the transferring guarantee is false and has no effect,while others recognize its effect agreed between both parties based on the principle of contractual freedom.However,both them avoid determining the nature of transferring guarantee.Secondly,focusing on problems,the part finds that such problems exist in judicial application of transferring guarantee as the easiness to be confused with other related legal relations,different rules for the realization of creditors’ rights,and unclear effect of real right of transferring guarantee.The fourth part provides suggestions of judicial application for transferring guarantee,mainly including unifying the identification standard for legal relations of transferring guarantee,improving the rules for its realization,and recognizing its effect of real right.Given that the trade of transferring guarantee depends on the trust between both parties,the breach of one party will cause a loss of interest to the other party.Therefore,the part mainly puts forward corresponding suggestions for improvement for the purpose of achieving judicial protection,and believes that judicial judgments should pay attention to the application of public order and good morals and principle of integrity,and keep the balance between social effects and private benefits.