On The Connection Between Ownership Guarantee And Security Interest

Before the promulgation of the Civil Code,China adopted the classical formalism legislative model concerning the part of security interest.Under the strict principle of numerus clauses,the types of chattel guarantee are limited to mortgage,pledge and lien.Although the ownership guarantee has the object function of guarantee,it is still not a type of security interest recognized by the law.The seller of title retention and the lessor of finance lease are protected according to the rules of ownership,resulting in the big problem of invisible guarantee,which leads to the problems such as imbalanced interest of the creditor and the debtor.In order to solve the above problems and optimize the business environment,the Civil Code introduces the concept of substantial guarantee,which is intended to realize the systematic harmony between ownership guarantee and security interest by expanding the scope of guarantee contracts and enabling ownership guarantee to register in the registration book.However,there are no detailed provisions on how to make good connections between specific systems,which needs to be further explained.To promote the connection between ownership guarantee and security interest,we should first build a unified chattel guarantee registration system,which clearly includes the chattel transferring security into the existing chattel financing unified registration and publicity system,unifies the registration contents of various guarantees,and smooths the connection between the system and other existing registration systems;Secondly,it is necessary to integrate the registration effectiveness of security ownership and chattel mortgage.Once the above rights are established,they have the attribute of real right and are free to fight against ordinary creditors,but without registration,they can not fight against bona fide transferees,lessees and buyers in the ordinary course of business;Moreover,it is necessary to unify the priority rules of these guarantees.In terms of interpretation,Article 415,Article 416 and Article 456 of the Civil Code should adopt the same position of functionalism as Article 414 and be applied to the field of ownership guarantee.