On Dynamic Pledge In China

The dynamic pledge of movable assets arising from the innovation of logistics finance meets the practical needs of banks and financial institutions,logistics companies and production-oriented enterprises,and is a new path to solve the financing problems of SMEs.Dynamic pledge is a new type of guarantee with both efficiency and security,and is an effective financial guarantee model that emerges to solve the problems of bank loans and financing difficulties of SMEs.Chapter 1 firstly composes the process of the emergence and development of dynamic pledge,and elaborates on the three main models and their respective legal relationships.By comparing dynamic pledge with static pledge of movable assets,floating charge of movable assets and warehouse receipt pledge,the value and significance of dynamic pledge under China’s security law system are highlighted from the perspective of efficiency value and security value.Chapter 2 argues the legality of dynamic pledge through the perspective of property rights.As there is no provision on dynamic pledge in the property rights part of the Civil Code,the only legal norm is Article 55 of the Interpretation of the Security System of the Civil Code,which stipulates the adjudication rules in three aspects of dynamic pledge of movable assets,including the time and elements of the establishment of pledge,the default liability of the supervisor for improper release of goods,and the default liability of the pledgee,on the basis of absorbing the relevant contents in the Nine Civil Records.Moreover,dynamic pledges are usually liquid inventories in the warehouses of enterprises,and the pledges are in a state of fluidity and change during possession,so there is a risk that dynamic pledges will not be recognized in practice.Therefore,the legality of dynamic pledge is argued from two perspectives: the principle of legal title in rem and the principle of specificity of the object of title.Chapter 3 explores the establishment of dynamic pledge.In dynamic pledge,depending on the location where the pledges are stored,the possession patterns of each possessor differ,and there is a controversy in judging whether the delivery of the pledged property is completed.In order to unify the criteria for judging the completion of delivery of dynamic pledges,the perfection of the mode of possession and the recognition of joint possession provide a reasonable basis for the interpretation of the validity of dynamic pledges under non-transfer conditions.On the issue of publicity mode and validity of dynamic pledge in rem,possession as a means of publicity should be adhered to,while covering the validity of joint possession to set dynamic pledge in the form of joint possession control.Chapter 4 analyzes the issue of supervision of pledges.The essence of the thirdparty pledge supervision agreement is a commission contract.In the improvement of the third-party pledge supervision agreement,the third-party pledge supervision agreement should be oriented to enhance the supervisory power to strengthen the security power,to enter into the excess pledge return clause to take into account the circulation of the pledge,and to improve the return clause in the filling agreement.The confirmation and performance of the review and supervision obligations of the thirdparty supervisor are related to the survival and conflict of pledge rights.The supervisor’s improper performance of examination and supervision obligations will give rise to supervisory liability,and the principle of imputation and scope of responsibility of the supervisor’s liability are the principle of fault liability and supplementary liability.Chapter 5 discusses the competing rights and resolution path of dynamic pledge.In dynamic pledge,the pledgee still has certain control over the pledge after setting a pledge on its movable property,especially when the pledge still exists with the pledgee,creating conditions for the creation of repeated pledges.In practice,it often happens that the pledgee repeatedly creates a pledge with the same scope or part of the overlapping movable assets,at which time the effect of creating a duplicate pledge by way of dynamic pledge should be affirmed.Regarding the subordination of multiple security,when the floating mortgage of movable assets and dynamic pledge coexist,the order of satisfaction of claims shall be subject to the order of publicity.When the registration of the mortgage and the delivery of the movable property are processed on the same day,and the actual time of delivery of the collateral cannot be clarified,the order of satisfaction of the two shall be considered the same.