중국양도담보의 현황과 발전(中国让与担保的现状和发展)

The rise of security transfer in China emerged due to the deficiencies in the registration procedures and cumbersome realization methods for movable property mortgages. With the introduction of the functionalist security concepts and notice filing systems, the advantages of security transfers have gradually diminished, reducing it primarily to a mechanism for vesting and liquidation. The Property Rights section of the Chinese Civil Code does not explicitly provide for in rem security rights established through the transfer of rights, but it does add a chapter on factoring contracts that includes security through the assignment of claims. The prevailing doctrine considers security transfer as falling under "other contracts with security functions" as stipulated in Article 388 of the Civil Code. Security transfers are evaluated similarly to other non-possessory security interests in rem, and are uniformly subject to the registration rules for movable property and rights. If not registered upon establishment, the holder of the security interest will be disadvantaged in priority conflicts with competing rights holders. If the secured claim remains unsatisfied, the holder of security interests can only implement liquidation by enforcement sale in the same way as others. Whether the legal structure of security transfer adopts an ownership construction theory or a security right construction theory, its legal application barely differs from that of movable property mortgages regarding security interests. The practical implementation of security transfers is complicated by the infrequent use of explicit security agreement clauses and the integrated transaction form of rights transfers, creating ambiguity in identifying the security purpose.