Study On Transfer Guarantee System Under Guarantee System Of Civil Code

As a kind of atypical guarantee,transfer guarantee has many advantages,such as convenient use,flexible application,low cost,high efficiency and wide range of guaranty objects,etc.,and its role in market economic activities is becoming more and more prominent.Nevertheless,the Civil Code does not include the transfer guarantee.There is also constant controversy in the theoretical circles about whether the transfer guarantee violates the legal principle of property rights,and there are no clear provisions in the law about whether the transfer guarantee has the property right and the effectiveness and publicity mode of the transfer guarantee,which is not conducive to the development of the transfer guarantee to a certain extent.In combination with the first paragraph of Article 388 of the Civil Code and Article 68 of the Interpretation of Security in the Civil Code,and according to the actual situation of China,this paper discusses the property right,the way of publicity and the conflict of priority effect of transfer security,so as to provide reference for the transfer security system to be incorporated into the property law system.The innovation of this thesis mainly lies in the discussion of the property right of assignment and security and the solution to the conflict of priority effect of assignment and security.This thesis has four parts.The first part mainly introduces the development history,nature and other basic theories of transfer guarantee.and analyzes the difference between assignment and guarantee system and liquid contract,assignment and guarantee system and post-assignment and guarantee system,so as to lay a theoretical foundation for further research on the related issues of transfer guarantee.The second part mainly discusses the property right of transfer and guarantee.Firstly,this thesis discusses the two most controversial issues in the theoretical circle,namely,whether the transfer guarantee violates the numerus rem law and whether the transfer guarantee has the property right.Secondly,based on article 388 of the Civil Code and Article 68 of the Interpretation of Security in the Civil Code,this thesis concretely demonstrates that the alienation and security have the property right.The third part mainly elaborates the public announcement way of the assignment guarantee.The core of the real right of security is to ensure the creditor’s priority to receive compensation,and the realization of this core needs certain publicity methods.Therefore,the transfer guarantee also needs certain publicity methods to realize its real right.In this chapter,the author concludes the suitable publicity of China’s alienation guarantee by combining the publicity mode of China’s typical real right for security and the legislation and practice of Germany,Japan,the United States and other countries.Direct use of the unified registration system for movables and rights;The assignment and guarantee of real estate insist on taking registration as the effective requirement,and the assignment and guarantee of rights should be analyzed according to the types of the subject matter.The fourth part mainly discusses the solution of the concurrence between the priority effect of assignment and guarantee in the guarantee system.First of all,the reasons and conditions for the conflict of priority effect of security real right are discussed.Secondly,through the analysis of the solution of Germany and Japan,the specific discussion of China’s transfer guarantee and typical guarantee,and ownership retention competition and cooperation,as well as the transfer guarantee repeated setting solutions.