Review on Sicherung Sübereignung and Its Application
|School||China University of Political Science|
|Keywords||mortgage chattel hypothecation Publicity Establishing in written from-antagonistic to registration|
The system of alienation guarantee is an untypical guarantee system that developed gradually through absorbing Fiducia Theory in Roman Law by civil law countries(Germany,Japan,China,etc.)and needs to transfer fhe rights of subject matter.The system has already been applied extensively in the following countries,such as Germany,Japan,England,America,etc.The article has comprehensively surveyed the untypical guarantee system which began from the proprietary right and reat pledge,deeply approached the developing needs of trandfering guarantee,nature and prantice,especially analyzed and compared the system of guarantee and retation such as mortgage,movable guarantee,pledge, security and lien,etc.The code of civil law in all countries has not regutated to transfering gurantee.The comcept has also been affirmed by authority from the code of civil law.Scholars who understand the meaning of the transferring guarantee have not reached the complete agreement.As a new type of guarantee,transferring guarantee is not a prescribed material right regulated by statute,it is the result of client according to his own ideas an untypical guarantee.If must hare secured credit,if the secured credit is not effective the transferring guarantee is not effective too.This is the most outstanding characferistics of the transferring guarantee.The article has analysed and proved the nature and function of the transferring guarantee according to the necessity and availlability of the transferring guarantee system established by our country.The author holds that the necessity and availability of the transferring guarantee system existed in our country.By surveying the transferring guarantee from theary and practice,the article pointed out thaf this survey aids to the legislation of the material law in our country and economic development in social life.The current basic reason of transferring guarantee bases on the characteristic social function of transferring guarantee in modern economy.The transferring guarantee can strengthen the trust in circulate funds of debtor,expand the fumcfion of circalate funds,and be economical of cost in trading.So the system has already been adopted by all countries tecause it meets the needs of the ecouomic development of society.In fact there actually exists numbers of relalions of transferring guarantee such as mortgage,superior remedy in building project,but the law has been shy it away.Because there are a number of controversies in the theoretic questions of transfering guarantee system,the transfering guarantee has also become the focus of controversy in the legislation of the materical law in our country.The article insists that there exists the actual demand of establishing fransfering guarantee in the theory and economical development in our country.The law ihould standardize and confirm the system as soon as possible which can promote the social circulation and transaction safety in order to improve the market economy system in our country.