The Path Choice And Application Of Fluidity Clause

The prohibition of fluidity clause has problems such as norms conflict,confusion in judicial application,and theoretical disputes.From the perspective of comparative law,the legislative model of fluidity clause shows a trend of changing from prohibitionism to liberalism.The liberal legislative model has positive significance in reducing market transaction cost,promoting the unification of legal system,also gives consideration to legal value.Articles 401 and 428 of the Civil Code of the People’s Republic of China,changed from a prohibited code of conduct pattern to a technical legal consequences.Although there is no clear recognition of effectiveness of fluidity clause,but combined with the legislation trend of real rights,especially the real right of security,the core idea of these two clauses is to move towards functionalism and eliminate the invisible guarantee.As a result,the real right legal ease and unified security trading rules have laid the foundation for releasing the prohibitive liquidity clause.Under the liberal legislative model,the provisions of the fluidity clause in the Civil Code belong to the category of autonomy of will,and the transfer of ownership is a proper meaning in the priority of compensation.Of course,in order to reflect the concept of fairness and justice,and balance the interests of all parties,it is necessary to regulate the liquidity clause through registration system and liquidation system.In the application of law,unregistered fluidity clauses cannot be used against bona fide third parties.The registration terms of the fluidity has certain payments,in accordance with the public order.In terms of chattel mortgage,the obligatory right of payment in accordance with the requirements should take precedence over the registered liquidity clause.Whether the registered liquidity clause can counter the buyer in the normal operation is a question of value judgment.Under the unified security trading rules of chattel property and rights,the registered liquidity clause has the right of confrontation.