民法典后动产担保制度的新变化

Abstract

The security system is both a fundamental tool for securing market transactions and effective regulatory tool for the market economy. The security system has also traditionally been an exceptionally active area of trading practice. Therefore, the modernization of the security system is related to the healthy development of the whole market economy. Our Civil Code has made several important changes to the original security system, especially the movable security system, in order to meet the requirements of security modernization. First, drawing on the idea of functionalism in the U.S. Uniform Commercial Code, the legislator chose to combine functionalism with formalism by modifying the section on security interests. Article 388 of the Civil Code, for example, expands the scope of application of the law of security rights by broadly identifying security rights, laying the groundwork for recognizing new types of security as they develop in the future. Second, the scope of secured property is expanded to meet the needs of modern economic development. The Civil Code allows for a general description of secured property to be described. Such a system design gives the parties greater autonomy and leaves room for the development of future mortgages or pledges of property. Thirdly, it eases the principle of numerus clausus and provides institutional convenience for parties to agree to create security. Fourth, it unifies the registration and publicity of movable security and establishes an electronic registration system for security rights in movable property. The same rules apply to typical and atypical guarantees of movable property, typical and atypical guarantees of rights, and guarantees of movable assets and rights. Fifth, through several legal provisions of the Civil Code, rules of priority in case of competing security rights are established. The general rule of “prior registration, prior effectiveness” is established in Article 414, paragraph 1, of the Civil Code. Article 416 of the Civil Code establishes special rules. When a purchase price mortgage satisfies certain publicity requirements, the law grants it super-priority status against other security rights in the same subject matter that were created and registered earlier. Therefore, it is called super priority rule. Sixth, in order to encourage secured transactions and promote the use of property to its fullest extent, Article 406 of the Civil Code allows the mortgagor to transfer the mortgaged property after the creation of mortgage. This legal provision changes the previous provision of Article 191 of the Property Law. Seventh, the legislature referred to the provisions of the newly revised French Civil Code. Article 428 of the Civil Code no longer prohibits the agreement of a fluidity clause, but provides that “only have priority to be paid from the pledged property in accordance with law”. Eighth, the rule of buyer in ordinary course of business is set. That is, a mortgage on movable property shall not be held against a buyer who has paid a reasonable price and acquired the mortgaged property in the ordinary course of business. This rule exempts the buyer in ordinary business from the duty of inquiry and provides protection for the buyer’s reliance interests and transaction security. Article 404 of the Civil Code extends the application of the rule from floating mortgages to mortgages on movable property. It further reduces the transaction cost and improves the efficiency of the transaction. These above-mentioned transformations help China form a unified legal framework for secured transactions of movable property and rights, and further promote the development of China's market economy.