Research On The Establishment Of Pledge Right Under The Dynamic Pledge Mode

Different from the static movable property pledge,the dynamic pledge model introduces a third-party custodian,who owns and manages the pledge on behalf of the pledgee.Due to the liquidity of the pledge in this model,it is defined as dynamic pledge in practice.In the "Minutes of the National Court Civil and Commercial Trial Work Conference" released in 2019,Article 63 stipulates the order of dynamic pledge and the responsibility of the supervisor;On December 31,2020,the "Interpretation on the Application of the Guarantee System of the Civil Code of the People’s Republic of China"issued by the Supreme People’s Court,Article 55 stipulates that the establishment of pledge rights shall be subject to the actual control of the pledge by the supervisor.Although the above provisions slightly involve dynamic pledges,they are not enough to solve all the problems.Specifically,it includes,whether the dynamic pledge can establish a pledge of movable property,and Whether joint possession can be used as a publicity method for the establishment of pledge etc.By disassembling the dynamic mode operation process and analyzing the constitutional elements of pledge,this article believes that,First of all,the dynamic pledge does not create a new security right,it still belongs to the category of the pledge of movable property,and is a new form of expression of the pledge of movable property;Secondly,under the dynamic pledge mode,the pledged property has liquidity and does not affect the establishment of pledge rights.Under the mode of transfer of goods out of the warehouse,joint possession should be affirmed as the publicity method;In the mode of non-transfer of materials out of the warehouse,only possession modification is excluded;Finally,the liability of third-party supervisors introduced in the dynamic pledge model should be summarized and analyzed according to their breach of obligations,and the degree of responsibility should be determined according to the size of the supervisory fault and the force of the cause.