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The Legislation of Transferring Guarantee

Author: HuangSongDe
Tutor: ZhuXiaoQin
School: Xiamen University
Course: Legal
Keywords: Transferring guarantee Obstacle of legislation Institution arrangement
CLC: D923.2
Type: Master's thesis
Year: 2009
Downloads: 151
Quote: 1
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Abstract

After being proved impossible for transferring guarantee to be included by Real Rights Law of China, the relative argument is calm. In my opinion, this is not an end. Now as transferring guarantee has enjoyed a popularity in warranty practice which makes the discussion about transferring guarantee widely and deeply, their discussion focuses on whether this kind of guarantee should be legislated in China. The new task calls for an urgent solution and further study, which is the motivation for me to write the thesis.This paper discusses the legitimation of transferring guarantee. Correspondently, it mainly adopts value analysis, empirical analysis and comparing technique, to make suggestion for our legislation.This paper consists of four parts.Firstly, in order to discuss this problem systematically and deeply, the author narrates the conception, function and nature of transferring guarantee system and holds that the essence of transferring guarantee is the real right for security. Chattel transfer guarantee is characterized by the fact that parties aim to achieve the guarantee credit by means of property transference.Secondly, the author investigates the system of transferring guarantee of such countries and areas as Germany, Japan, Taiwan, England and U.S.A, etc and expounds some of provisions that can be used for reference to the transferring guarantee system in China. In this part, the author makes a research on house mortgage, inward bill receivables, financial leasing, margin financing and securities lending business, and points out that the nature of these items is the form of transferring guarantee.Thirdly, the author introduces the queries from which transferring guarantee has suffered. Then this part goes on to discuss related efforts to quiet down these queries, which includes the suspicion of lacking verity and its vindications, suspicion of resembling fluid contract and its vindications, suspicion of infringing authoritative principle and its vindications. Additionally, by making a comparison between transferring guarantee and chattel mortgage, the author thinks that the system of transferring guarantee should take the place of the system of chattel mortgage. Moreover, In order to prevent the creditor and the third person from suffering beneficial disadvantages and defend the trading safety, we have to design a method of public summons suitable for chattel transfer guarantee. Weighing gains and losses, the author’s opinion is that the method of public summons of chattel transfer guarantee should be sign on paper contract and register on paper opposing, and it should adopt the system of "notice register" from the Uniform Commercial Code of the United States. On this basis, it is indispensable to establishing a nation-wide uniform electronic net for guaranty registration which is safe, convenient and cheap to facilitate public noticing, checking, altering and writing off.The fourth Part is the outlook for the ultimate destination of the institution. In my opinion, it is not a feasible time to abolish chattel mortgage and take transferring guarantee to replace it immediately. And I give a suggestion on the institution arrangement and introduce the reasons as well.

The Legislation of Transferring Guarantee

Abstract

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