| In recent years,the application of assignment guarantee in commercial practice is more and more,which not only brings convenience to market financing,but also produces corresponding legal problems.Before the implementation of the Civil Code,scholars and judges mainly studied and discussed the effectiveness of the guarantee of alienation.After the implementation of the Civil Code and the Judicial Interpretation of the Guarantee System of the Civil Code,although the effectiveness problem has been solved,the current legal provisions on the guarantee of alienation are still not perfect enough to provide sufficient basis and guidance for practice.As an atypical guarantee system which has been developing continuously in the jurisprudence and theory,the transference guarantee has the function which cannot be replaced by other guarantee methods,and is also a supplement to the traditional guarantee methods.In order to respond to the realistic demand,it is imperative to conduct a more comprehensive study and regulation on the transference guarantee.The text of this paper is divided into seven parts: the first part describes the research background and significance of this paper,reviews the current domestic and foreign research process and status quo on the assignment guarantee,and expounds the research content,research methods and innovation of this paper.The second part is an overview of the whole theory of the assignment guarantee.Firstly,the concept and type of atypical guarantee are briefly introduced,and the concept and characteristics of transference guarantee are sorted out.Secondly,it expounds and analyzes the legal constitution of the guaranty,and determines that this paper takes the "guaranty right constitution" as the theoretical basis.Finally,according to the research and application of the guarantee of assignment in German and Japanese civil law,it investigates from four aspects: development,establishment,publicity and realization of creditor’s rights.The third part combs and analyzes the legislative status quo and judicial practice of conveyancing and guaranty in our country.In terms of legislation,according to whether the assignment guarantee is directly stipulated,the article is divided into direct provisions and relevant provisions,and the specific situation of the current legal provisions is interpreted.In terms of judicial practice,aiming at the judgment ideas of courts in Jiangsu Province in the case of transfer guarantee,the implementation time of Judicial Interpretation of Guarantee System of Civil Code is sorted out.In the third section of this part,the legislative situation and the change of judicial practice are summarized and analyzed,and it is determined that the problems studied in this paper are the publicity rules of the assignment guarantee,the protection rules of rights and interests and the realization of creditor’s rights.The fourth part is the analysis of the publicity of the assignment guarantee.This part sets out from three different types of objects,real estate,chattel and equity,combines with the situation in the practice of our country and draws lessons from foreign experience,and describes and analyzes three different types of alienation guarantee public problems.It holds that those established in the form of notice registration in the guarantee of real estate transfer have the function of publicity,while those registered for record have no function of publicity;In the modern commercial society where the right and possession are separated,it should be recognized that the guarantee of transfer of movable property is set up in the way of possession modification.The guarantee of equity transfer shall be made public by registration.The fifth part is the analysis of the protection of the rights and interests of the parties concerned.This part of the study determines the applicable space of the bona fide acquisition rule in the assignment of guarantee.On this basis,it analyzes the wrongful disposal of the guaranteed property by the creditor and the wrongful disposal of the guaranteed property by the guarantee provider respectively to determine what kind of responsibility the wrongful disposal should bear and what kind of rights the counterpart enjoys under different perspectives.The sixth part is the analysis of the realization of the assignment secured claim.This part firstly studies whether the rule of "no liquidating(pledge)" can be applied in the assignment guarantee,and holds that the transaction risk can be effectively avoided by imposing compulsory liquidation obligations on creditors.Therefore,the autonomy of will of the parties should be respected and no compulsory provisions should be made on this rule.Secondly,the author analyzes and compares two different ways to realize creditor’s rights,the disposition liquidation type and the attribution liquidation type,and thinks that the attribution liquidation type can better play the advantage of the assignment guarantee,and should be one of its realization ways.Finally,the paper studies how to apply the two ways of realization of creditor’s rights,and holds that the parties should choose independently,and the creditor should be given the right to choose when there is no agreement or unclear agreement.Part seven is some suggestion to the perfection of the legislation of conveyance and guaranty in our country.This part analyzes the realistic demand and feasibility of the legislation of conveyancing guarantee,thinks that the construction of conveyancing guarantee system should be carried out in the mode of special law,and gives corresponding suggestions from the establishment of conveyancing guarantee,publicity,protection of rights and realization of creditor’s rights. |
