| The legal structure of transfer guarantee directly determines the specific effectiveness of transfer guarantee,and determines the rights and obligations between the parties,as well as between the parties and their respective creditors,as well as the general third party.Among the existing legal construction theories on transfer guarantee,the "ownership construction theory" focuses on the "transfer" elements of transfer guarantee,and the way in which the means exceed the purpose leads to the risk of the secured party seizing excess benefits;"The construction theory of security rights" focuses on the "security" elements of transfer security,making it impossible for transfer security to exist independently within the property system;The "eclectic structural theory" attempts to reconcile the contradiction between the two,but due to its conceptual ambiguity and theoretical difficulties in decomposing ownership,it has also failed to achieve its desired goal.No matter what kind of legal construction theory is chosen,it only serves as a temporary measure to adapt to the development needs of market transactions.There are many disagreements in theoretical restoration,which makes it difficult to better achieve the value balance between party autonomy and legal enforcement.The transfer guarantee is still on the edge of the law,and there is no suitable positioning in the entire legal system.According to the theory of the dichotomy of property and debt and the strict legal principle of property rights,property rights in specific objects are either considered as creditor’s rights or as property rights,and will definitely not give room for a third interpretation.However,the distinction between property rights and claims based on the criteria of relative absolute and dominant claims is not without intersection.The two are only the division of property types,not the conceptual choice of either property rights or claims.Assignment guarantees often occur in commercial activities.Compared to civil subjects,commercial subjects tend to be more rational and able to assess transaction risks more accurately.In order to meet the efficiency requirements of commercial transactions,it is necessary to tilt the static fair value towards the dynamic efficiency value balance.Once atypical security becomes typical,as a buffer between the legal and private autonomy of real rights,as well as the gap between legal and practical systems,it moves towards one end,and the independent value and function of alienation security as an atypical security will be comprehensively squeezed under the effect of legal compulsion.In addition,the transition from customary law to statutory law is the result of the combined action of many factors,including whether its own practical development is mature,whether it has sufficient theoretical support,and whether it can achieve the desired social effects.Judging from the reality,the cultural conditions for transfer guarantee are not mature.Although the system of transfer guarantee is not explicitly stipulated in the Civil Code,the provisions on "other contracts with guarantee functions" in Article 388 integrate the effectiveness of atypical guarantees,clarify the functional positioning of transfer guarantee,and provide a legal basis for the construction of intermediate rights in transfer guarantee.The institutional function of transfer guarantee under the structure of intermediate rights is realized through the joint action of two elements: "transfer" and "guarantee".In terms of its "transfer" element,the transferred property right is not a complete ownership in the sense of property law,but a formal transfer to achieve the security function,and the ownership of the collateral remains vested in the guarantor;The creation of secured ownership in the sense of creditor’s rights determines the basic form of transfer guarantee and affects the way in which the creditor’s rights are realized.In terms of its "guarantee" element,the parties hope to obtain the right of priority to receive compensation for the collateral against third parties through the transfer of ownership.Assignment guarantees have different legal effects within different scopes,and the distinction of their effects also follows specific principles.Before the transfer guarantee is publicized,its effectiveness is reflected in the creditor’s rights effectiveness that binds both parties.If you want to obtain the effectiveness of property rights against third parties and maintain the safety of market transactions,you must make it known to third parties through effective publicity methods.The publicity principle of "delivery of movable property,registration of immovable property" in the property law has reference significance for the publicity of transfer guarantee.In the rules for the realization of the right to assign security,the attribution effect of the subject matter does not lie in the agreement itself,but rather in whether to proceed with liquidation. |
