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Gao Shengping: On the Modification of General Provisions of Real Rights for Security

Abstract: When the Real Rights for Security Part of Property Law of Civil Code is codified, the general provisions of it should be perfected on the basis of the relevant provisions of Guarantee Law, Judicial Interpretation of Guarantee Law and Property Law. To recognize that parties can break the subordination of real rights for security by stipulations, to leave possibility that real rights for security can be used as a financial investment tool. To provide that the unregistered range of security can not counter the third party, to reduce the third party¡¯s cost of collecting information and avoid unexpected harm. To recognize the validity of fluidity contract which pays off debts by the ownership of the security while imposing liquidation obligations on the holder of real rights for security to perfect the private implement of real rights for security. To provide that real rights for security shall be eliminated when the holder of real rights for security fail to exercise them within the period of statute of limitations of the principal creditor¡¯s right and to allow parties to stipulate the valid period of the registration of mortgage of chattels and pledge of receivables. To provide the mortgager¡¯s subrogation right and resourcing right to the debtor to perfect the system of protecting the security provider¡¯s rights. To give the creditor freedom of choice when there are both physical and personal securities, meanwhile to allow parties make exception stipulations of the order and shares of real rights for security and to recognize the relationship of inside claims of the security providers when there are no order interests between them.

Key words: Independent Guarantee, The Range of Security, Fluidity Contract, The Subrogation Right of Security Provider, Mixed Co-guarantee

(Editor: Levi Hu)

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