Discussion On The Effect Of Assignment Guarantee

Compared with statutory security interest,alienation guarantee has certain functional advantages and is widely used,but it has been criticized due to the lack of laws and regulations.For this reason,the Supreme People’s Court issued the "Interpretation of the Supreme People’s Court on the Application of the Guarantee System in the ’Civil Code of the People’s Republic of China"",in which Article 68 stipulates the alienation guarantee,but there are still problems worthy of further discussion.First of all,in the selection of the right structure of the alienation guarantee,because the theory of the composition of the security right conforms to the nature of alienation guarantee,it is also conducive to the coordination between alienation guarantee and our legal system,and balances the interests of all parties,the theory of the composition of the security right should be adopted.Secondly,in the determination of the contractual validity of alienation guarantee,on the basis of clarifying the difference between alienation guarantee and other legal relations,various factors should be comprehensively considered and the interests of all parties should be balanced,so as to confirm the contractual validity of alienation guarantee.Thirdly,in the determination of the validity of the alienation guarantee,the alienation guarantee does not conflict with the legal principle of the property right,and the validity of the alienation guarantee should not be denied on the grounds that the alienation guarantee violates the legal principle of the property right.The internal effect of the alienation guarantee emphasizes the agreement between the parties,while the external effect is limited by the appearance of rights,and the rights of third parties should be protected by the appearance of whether the third party knows.Finally,in terms of the realization of the alienation guarantee,the realization procedure of the sanction-type alienation guarantee should include the possession of the subject matter,arbitrary evaluation,punishment,and so on.The realization procedure of the attribution-type alienation guarantee should include mandatory evaluation of the subject matter,and at the same time,procedures such as the fulfillment of the right of defense.