Comparison of Guarantee Law

Author: Fei Anling
Publisher:
Publish Date: 2004-03-01
Features: The features of this book are as follows: , This book primarily relies on the civil codes and related laws of EU countries. The author has not examined the legal systems of all EU countries but has selected some representative ones, such as Germany, France, Switzerland, Italy, and the United Kingdom, as the objects of study. This is because the civil codes of each of these countries are distinctive in terms of their systems and theories, making them fully representative of the civil law countries. The United Kingdom, on the other hand, is a major representative of the common law system. In the discussion, while distinguishing between the two legal systems in principle, some content is also compared together. Second, in terms of research methods, a combination of differentiated and comprehensive analysis is adopted. Since the five countries involved can basically be divided into three legislative models, Germany and Switzerland, which belong to the civil law system, are of the same type, while France and Italy are similar and also belong to the civil law system, and the United Kingdom, which belongs to the common law system, stands alone. However, there are differences within the same category and similarities within different categories, so for the United Kingdom, which is the only common law country (because of the significant differences in legal traditions, its system of real estate security is relatively special and cannot be separately compared with the civil law systems of Germany, Switzerland, France, and Italy), the main approach is to list and summarize it separately, while sometimes comparing it specifically with other countries. Third, the purpose of this paper is not to provide a detailed and systematic introduction to the security systems of different countries, but rather to focus on the comparative analysis of some basic theories and institutional norms, and to explore the underlying determinants of the systems and the connections and constraints between them. Fourth, the structure of this paper is basically based on the framework of the civil law system, particularly following the division of the security law in our country, which is divided into five parts: guarantees, mortgage rights, pledge rights, retention rights, and deposits. These are compared and discussed separately. However, this arrangement is merely to find an angle of observation, and the security systems of other countries are not all limited to the above five categories, or are not restricted to only the above five categories. Through this angle, similar or systems are compared and analyzed either holistically or partially, tracing their origins, analyzing their similarities and differences, describing their functions, and evaluating their advantages and disadvantages, in order to achieve the purpose of using foreign law as a mirror. The author of this book has published their research findings, hoping to engage in discussions with fellow legal scholars to achieve the following two main purposes: First, through comparison, not only do we gain a clearer understanding of the security systems of other countries, but we also clarify the scientificity, systematic nature, and inevitability of the institutional design. This makes it clear that when reconstructing our country's security law system, we should not hastily choose or reject specific institutions but should analyze them comprehensively within the overall institutional environment and legislative objectives before deciding whether to adopt them. Legal institutions are like a precisely designed machine, where every specific part must work together and coordinate with each other. Each part has its necessity and inevitability. Sometimes, choosing one part is equivalent to choosing the entire system. If this coordination is not paid attention to, it may lead to contradictions, repetitions, and waste between institutions, and even deviate from the legislative objectives. Taking the mortgage right system as an example, logically speaking, the differences in the mortgage right system fundamentally depend on the design of the subordinateness and negotiability of the mortgage right. These different designs are supported by different mortgage registration systems, which in turn determine the differences in other related systems, such as the order of mortgages, the cancellation of mortgages, the scope of the effectiveness of mortgages, the relationship between contractual mortgages and statutory mortgages and judicial mortgages, the relationship between mortgages and preferential rights or prior rights, and the mutual influence between mortgages and guarantee systems. The choice of different mortgage right systems is determined by the different legal traditions, institutional backgrounds, and legislative objectives of each country, and is constrained by the necessary coordination and consistency within and outside the mortgage system. Second, through the study of the evolution and convergence of security law systems, we explore the legal principles they reflect, reflect on the imperfections and lack of scientificity of our current legislative system, identify its shortcomings, and recognize the necessity of adhering to the laws.