1. The Property Law clarifies that the agreement of independent guarantee is invalid. The first paragraph of Article 5 of the Guarantee Law stipulates: "The guarantee contract is a subsidiary contract of the main contract, and the main contract is invalid, and the guarantee contract is invalid. Unless otherwise agreed in the guarantee contract, such agreement shall prevail. " The first paragraph of Article 172 of the Property Law stipulates: "To establish a security interest, a security contract shall be concluded in accordance with the provisions of this Law and other laws. The guarantee contract is a subsidiary contract of the principal creditor's rights and debts contract. The principal creditor's rights and debts contract is invalid, and the guarantee contract is invalid, except as otherwise provided by law. " Through comparison, it can be seen that after the implementation of the Property Law, unless the law provides otherwise for independent guarantee, the provisions in laws, regulations and normative documents, including the agreement of the parties, that the effectiveness of the guarantee contract is independent of the main contract are invalid. The legislative reason of the property law is that the security interest exists attached to the principal creditor's rights and debts, and without the principal creditor's rights and debts, there is no security interest. If the law allows the parties to make an agreement that the principal creditor's rights and debts are invalid and the guarantee contract is still valid, then even if there is no principal creditor's rights and debts, the guarantor should bear the guarantee responsibility. This is not only unfair to the guarantor, but also may lead to fraud and abuse of rights, and may also harm the interests of other creditors. The scope of the adjustment of the guarantee law includes not only the real right guarantee methods such as mortgage, but also the non-real right guarantee methods such as guarantee and deposit. The situations allowed by the guarantee law are aimed at the guarantee contracts that are commonly used in international trade, such as payment on demand and payment on sight. The property law only adjusts the mortgage and other property security, so it is appropriate not to stipulate this in the property law. Second, the Property Law clarifies the validity of a guarantee contract and a security interest. Article 41 of the Guarantee Law stipulates: "If a party mortgages the property specified in Article 42 of this Law, it shall register the mortgaged property, and the mortgage contract shall take effect from the date of registration." Paragraph 2 of Article 64 stipulates: "A pledge contract shall take effect when the pledged property is handed over to the pledgee for possession." Article 15 of the Property Law stipulates: "Unless otherwise stipulated by law or in the contract, a contract concluded between the parties concerning the establishment, alteration, transfer and elimination of the property right of immovable property shall come into effect when the contract is established; Failure to register property rights does not affect the validity of the contract. " Article 187 stipulates: "If the property specified in Items 1 to 3 of the first paragraph of Article 18 of this Law or the building under construction specified in Item 5 is mortgaged, the mortgage registration shall be handled. The mortgage is established at the time of registration. " Article 212 stipulates: "The pledge shall be established when the pledger delivers the pledged property." Through comparison, we can see that China's property law abandons the concept of "confusing the basic relationship (contract) with the effect of the change of property rights" and distinguishes the basic relationship (contract) from the effect of the change of property rights. Unless otherwise stipulated by law or contract, the guarantee contract will take effect immediately. After the contract comes into effect, if one party fails to register mortgage or transfer possession, the other party may investigate its liability for breach of contract according to law. Iii. expansion of the scope of collateral in the property law
article 34 of the guarantee law stipulates the scope of collateral by enumerating and summarizing: "the following properties can be mortgaged: (1) houses owned by the mortgagor and other things fixed on the ground; (2) Machines, means of transport and other property owned by the mortgagor; (3) State-owned land use rights, houses and other fixed objects on the ground that the mortgagor has the right to dispose of according to law; (4) State-owned machinery, means of transport and other property that the mortgagor has the right to dispose of according to law; (5) The land use right of barren hills, gullies, hills and beaches contracted by the mortgagor according to law and mortgaged with the consent of the employer; (six) other property that can be mortgaged according to law. The mortgagor may mortgage the property listed in the preceding paragraph together. " In other words, only the property that can be mortgaged by law can be mortgaged. Article 18 of the Property Law adopts the method of enumeration and exclusion: "The following properties that the debtor or a third party has the right to dispose of can be mortgaged: (1) buildings and other land attachments; (2) The right to use construction land; (3) The right to contracted management of wasteland and other land obtained by means of bidding, auction and public consultation; (4) Production equipment, raw materials, semi-finished products and products; (5) Buildings, ships and aircraft under construction; (6) Means of transportation; (seven) other properties that are not prohibited by laws and administrative regulations. The mortgagor may mortgage the property listed in the preceding paragraph together. " Through comparison, we can see that compared with the guarantee law, the property law stipulates that as long as the property is not prohibited by laws and administrative regulations, it can be mortgaged, giving the parties greater autonomy of will, such as not limiting the scope of chattel mortgage. Four, the property law has added a floating charge system, and the guarantee law does not provide for the floating charge system. Article 181 of the Property Law clearly stipulates floating mortgage: "With the written agreement of the parties, enterprises, individual industrial and commercial households and agricultural producers and operators may mortgage the existing and future production equipment, raw materials, semi-finished products and products. If the debtor fails to perform the due debt or the mortgage is realized as agreed by the parties, the creditor has the right to be paid in priority for the movable property when the mortgage is realized." The so-called floating mortgage means that the obligee guarantees his debts with all or part of his existing and future property. If the debtor fails to perform the due debt or the mortgage is realized as agreed by the parties, the creditor has the right to be paid in priority for the movable property when the mortgage is realized as agreed. If the enterprise mortgages the existing and future production equipment, raw materials, semi-finished products and products, after the mortgage is set, the mortgagor can still put the mortgaged raw materials into finished product production or sell the mortgaged property. When the debt is not paid off at the expiration of the debt performance period, the mortgagor is declared bankrupt or revoked, and the realization of the mortgage agreed by the parties is achieved or the realization of the creditor's rights is seriously affected, the mortgaged property is determined, that is to say, what property the enterprise has at this time is the mortgaged property. Before the mortgaged property is determined, the property sold by the enterprise will not be recovered, and the property bought will be used as mortgaged property. If the mortgagor sets a floating mortgage with all his property, he only needs to indicate all the property mortgage at the time of registration, that is, to give a general description of the mortgaged property, and it is not necessary to make a detailed list of the mortgaged property. If part of the property is mortgaged, it is necessary to specify the category of the mortgaged property. Floating charge has two characteristics different from fixed charge: first, after the floating charge is set, the mortgaged property changes constantly, and the mortgaged property is not determined until the agreed or legal reasons occur. Second, during the floating mortgage period, the mortgagor does not need the consent of the mortgagee to dispose of the mortgaged property, and the mortgagee has no right of recourse to the mortgaged property, but only the property determined after the agreed or legal reasons occur. V. Differences between the two provisions on the effectiveness of mortgage registration of some collateral Articles 41 and 42 of the Guarantee Law stipulate that if an aircraft, ship or vehicle is mortgaged, the collateral shall be registered, and the mortgage contract shall take effect from the date of registration. Article 188 of the Property Law stipulates that if the mortgage is made by means of transportation, the mortgage right shall be established when the mortgage contract takes effect; Without registration, you may not confront a bona fide third party. Therefore, since October 1, 27, aircraft, ships, vehicles and other means of transportation have been used for mortgage. As long as the mortgage contract is signed, the mortgage right will be established, and only after registration can it be used against a bona fide third party. VI. Differences between the two provisions on the sequential effectiveness of the property guarantee and the person's guarantee
Article 28 of the Guarantee Law stipulates: "If the same creditor's right has both the guarantee and the property guarantee, the guarantor shall be liable for the creditor's right other than the property guarantee. If the creditor waives the guarantee of the property, the guarantor shall be exempted from the guarantee liability within the scope of the creditor's waiver of rights. " Article 176 of the Property Law stipulates: "If the secured creditor's right is guaranteed by both things and others, the creditor shall realize the creditor's right in accordance with the agreement if the debtor fails to perform the due debt or the parties agree to realize the security right; If there is no agreement or the agreement is not clear, and the debtor provides the guarantee of the thing himself, the creditor shall first realize the creditor's right on the guarantee of the thing; Where a third party provides a security for the property, the creditor may realize the creditor's right on the security for the property, or may require the guarantor to assume the guarantee liability. The third party who provides the guarantee has the right to recover from the debtor after assuming the guarantee responsibility. " Through comparison, we can see that the property law does not adopt the theory that the guarantee of things is superior to the guarantee of people, but insists on the principle that there is no priority between the guarantee of things and the guarantee of people, and gives consideration to the principle of fairness to distinguish the legal effect of the guarantee of things provided by the debtor from the guarantee of things provided by a third party. This is not only conducive to the realization of protecting creditor's rights, but also avoids the cumbersome procedures and the expansion of expenses. VII. The Property Law has stricter restrictions on the transfer of mortgaged property. Paragraph 1 of Article 49 of the Guarantee Law stipulates: "During the mortgage period, if the mortgagor transfers the registered mortgaged property, it shall notify the mortgagee and inform the transferee that the transferred property has been mortgaged; If the mortgagor fails to inform the mortgagee or the transferee, the transfer is invalid. " The second paragraph of Article 191 of the Property Law stipulates: "During the mortgage period, the mortgagor shall not transfer the mortgaged property without the consent of the mortgagee, except that the assignee will pay off the debt and extinguish the mortgage on his behalf." By comparison, it can be seen that the guarantee law adopts the notification principle to restrict the transfer of mortgaged property, that is, the mortgagor only needs to notify the mortgagee and assignee when transferring mortgaged property. The Property Law has made stricter restrictions on the transfer of mortgaged property, that is, the mortgagor must obtain the consent of the mortgagee when transferring mortgaged property. Fundamentally speaking, to transfer mortgaged property, the mortgage on the property must be eliminated. VIII. Differences between the two provisions on the duration of security interests Article 12 of the Supreme People's Court's Interpretation on Several Issues Concerning the Application of the Security Law of the People's Republic of China stipulates: "The security period agreed by the parties or required by the registration department is not legally binding on the duration of security interests. After the limitation of action for the creditor's rights secured by the security interest ends, if the secured party exercises the security interest within two years after the limitation of action ends, the people's court shall support it. " Article 22 of the Property Law clearly stipulates: "The mortgagee shall exercise the mortgage right during the limitation of action for the principal creditor's rights; If it is not exercised, the people's court will not protect it. " Article 22 stipulates: "The pledgor may request the pledgee to exercise the pledge right in time after the expiration of the debt performance period; If the pledgee fails to exercise it, the pledger may request the people's court to auction or sell the pledged property. The pledgor requests the pledgee to exercise the pledge right in time, and if the pledgee delays in exercising his rights and causes damage, the pledgee shall be liable for compensation. " Article 237: "The debtor may request the lien holder to exercise the lien after the expiration of the debt performance period; If the lien holder fails to exercise it, the debtor may request the people's court to auction or sell the retained property. " By comparison, we can see that compared with the guarantee law, the property law shortens the duration of mortgage. The duration of the mortgage is limited to the limitation period of the principal creditor's rights, which is two years less than the judicial interpretation of the guarantee law. The mortgagee should pay attention to this to avoid the loss of the right of the mortgage due to the expiration of the period. However, unlike mortgage, the property law does not stipulate the limitation of pledge and lien, that is to say, pledge and lien are not limited by the limitation of action of secured creditor's rights. However, in order to prevent the pledgee and lien holder from abusing their rights and being lazy in exercising their rights, the Property Law gives the pledgor and debtor the right to claim the pledge and lien. Nine, the property law has newly established the maximum pledge system, and the guarantee law has not stipulated the maximum pledge system. Article 222 of the Property Law stipulates the maximum pledge right with reference to the maximum mortgage system: "The so-called maximum pledge right refers to that if the debtor or a third party provides pledge guarantee for the performance of the secured debt, the debtor fails to perform the due debt or the parties agree to realize the pledge right, the pledgee has the right to be paid in priority for the secured property within the maximum pledge amount." The pledge of maximum amount is different from mortgage of maximum amount in the way of establishing security interests, and has many similarities: first, they are independent of the principal creditor's rights to some extent in the establishment, transfer and elimination; Second, the creditor's rights guaranteed by both are unspecified creditor's rights; Third, both of them are limited by the maximum amount of guarantee; Fourth, when realizing the security interest, it is necessary to determine the secured creditor's rights. In view of this, the property law stipulates the maximum pledge system with reference to the maximum mortgage system. X. Expansion of the scope of application of the pledge of rights in the Property Law Article 75 of the Guarantee Law stipulates: "The following rights that the debtor or a third party has the right to dispose of may be pledged: (1) Bills of exchange, checks, promissory notes, bonds, certificates of deposit, warehouse receipts and bills of lading; (2) Shares and stocks that can be transferred according to law; (3) The right to exclusive use of trademarks, the property rights in patent rights and copyrights that can be transferred according to law; (4) Other rights that can be pledged according to law. " Article 223 of the Property Law stipulates: "The following rights that the debtor or a third party has the right to dispose of may be pledged: (1) bills of exchange, checks and promissory notes; (2) Bonds and certificates of deposit; (3) Warehouse receipts and bills of lading; (4) Transferable fund shares and stock rights; (five) the transferable right to exclusive use of registered trademarks, patents, copyrights and other intellectual property rights; (6) Accounts receivable; (7) Other property rights that can be pledged according to laws and administrative regulations. " The pledge of rights refers to the pledge based on the property rights provided by the pledger. The provisions of the Property Law and the Guarantee Law on the pledge of rights all adopt the legislative way of enumeration, and all other rights can not be pledged except the rights expressly stipulated. However, compared with the guarantee law, the scope of the right to pledge in the property law is greatly broadened, such as the addition of fund shares, the equity of limited liability companies, accounts receivable, etc., which will certainly play an important role in promoting the financing and commodity circulation and developing the economy. Article 84 of the Guarantee Law stipulates: "If the debtor fails to perform the creditor's rights arising from the custody contract, transportation contract or processing contract, the creditor shall have the lien. The provisions of the preceding paragraph shall apply to other contracts that can be retained by law. The parties may stipulate in the contract what cannot be retained. " Article 232 of the Property Law stipulates: "A chattel that is prohibited by law or agreed by the parties shall not be retained." By comparison, it can be seen that the scope of application of lien stipulated in the guarantee law is too narrow, and lien can only be applied to creditor's rights arising from custody contracts, transportation contracts, processing contracts and other contracts that can be retained by law, which does not meet the needs of economic practice and is not conducive to protecting the interests of creditors. Therefore, the Property Law has expanded the scope of application of lien, and only stipulated that the lien is not allowed by law or agreement, giving the parties greater freedom. XII. Clarifying the relationship between lien property and creditor's rights; The relationship between lien property and creditor's rights is not clearly defined in the Guarantee Law. Article 131 of the Property Law stipulates: "The chattels retained by creditors shall belong to the same legal relationship as the creditor's rights, except those retained between enterprises." Through comparison, it can be seen that the property law clearly stipulates that the retained property should belong to the same legal relationship with the creditor's rights. At the same time, considering the particularity of business practice, transactions between enterprises are frequent, pursuing transaction efficiency and paying attention to commercial credit. If it is strictly required that the retained property must have the same legal relationship with the occurrence of creditor's rights, it is contrary to the transaction speed and transaction safety. Therefore, the Property Law specifically stipulates that the retained property between enterprises may not belong to the same legal relationship with the creditor's rights. This is undoubtedly conducive to protecting the legitimate rights and interests of enterprises, and will certainly promote the faster and healthier development of China's market economy. < P > Further reading: How to buy insurance, which is good, and how to handle it.