英国浮动抵押制度的研究外文翻译

British floating mortgage system researchReagan BeckerPerfection of securities systems is very important in each legal system because security is the oil and engine of the development of economy and there is a close relationship between them. Although the law of security has been passed in our country, there remains many problems such as simplicity of the types and defects of each kind of security which cannot meet the needs of raising money for enterprises. There are five kinds of security devices, namely guarantee, mortgage, pledge, lien and deposit. As to guarantee, creditors such as banks do rarely employ it for it is weakness as a result of a security by credit. As to mortgage, it is void if not be registered so the ambit of invalidity of security is increased and the parties do not like to use it. Moreover, the application of mortgage is largely reduced by that future assets do not be included in its subject matter. In addition, the use and flew of assets is greatly effected by the permission of creditor to dispose the assets. As to pledge, the efficiency of assets is limited by the possession of pledgee and that the pledgor has not right to dispose the assets. As to lien, it only applies to a few cases so it is not a typical security. As to deposit, it is not related to raise money. So it is very crucial to do some research on other legal systems. The floating charge called one of the most subtle creations of equity is a good subject for research to scholars of continental law and it is a common way for enterprises of the U.K. to borrow money. The floating charge can be created in all current and future assets of the enterprises to secure the debenture. The floating charge meets very well the needs of creditors and debtors because it ensures the needs of security of creditors and it entitles the right to debtors to deal with the assets of security. Where the provisions provided in the debenture have been breached, the creditor can appoint receiver to execute the security.As to the definition, there are three methods for judges to define the floating charge, including method of description, method of comparison and method of requirements. Macnaghten L.J said: a floating charge, on the other hand, is ambulatory and shifting in its nature, hovering over and so to speak floating with the property which it is intended to affect until some event occurs or some act is done which cause it to settle and fasten on the subject of the charge within its reach and grasp. Buckley L.J said: a floating security is not a future security; it is a present security which presently affects all the assets of the company expressed to be includedin itwa floating security is not a specific mortgage of the assets, plus a license to the mortgagor to dispose of them in the comprised in the securityw Romer L.J said: if a charge has the three characteristics that I am about to mention it is a floating charge. If it is a charge on a class of assets of a company present and future; if that class is one which, in the ordinary course of the business of the company, would be changing from time to time; and if you find that by the charge it is contemplated that, until some further step is taken by or behalf of those interested in the charge, the company may carry on its business in the ordinary way as far as concerns the particular class of assets I am dealing with. Although the floating charge has many advantages, for example, to meet the needs of chargee and chargor, to raise money, to decrease the limitation of improving efficiency of economy caused by using security and to rescue the company, its strength is challenged by some scholars. As to the genesis of the floating charge, it is a creation of the lawyers and the parties who want to borrow money as a result of the lack of adequate types of security for them to employ. The security in future assets created by the lawyers cannot be admitted by the common law, however, with the intervention of equity, together with the admission of some companies incorporated by parliament law to enjoy established by overcoming some theory difficulties. Comparing with the ordinary charges, the holder of the floating charge has right to deal with the assets subjected to of the floating charge in the ordinary course of business. What are the reasons of the right is very important to the theoretical basis. Throughout the cases concerning floating charges have run the threads of two different theories about their nature. The older theory, which can conveniently be called the "licence" theory, explains the company's power to act as the charge gives the chargor a licence to do so. The newer theory, called "the mortgage of future assets" theory, explains the company's power to deal with its assets by the fact that the charge does not attach specifically to any of its assets until some kind of security alike to the floating charge, the floating charge is finally crystallisation. Finally, although the special role in the development of economy, with the admission of the fixed charge on the book debts in 1970s and the advent of the culture of company rescue, some scholars has been challenged the value of the floating charge and they take the view that the floating charge should be abolished. Some scholars, however, suggest that the floating charge is historicheritage of the legal system of U.K., so it should be kept and could not be denied except reasonable reasons.The floating charge is often created for a company to raise money by debentures which are usually standard and should be registered in company registry within 21 days after creation. Now, a large number of creditors try to create fixed security on book debts which are usually subject matter of the floating charge as a result of different order of satisfaction of debts between the fixed charge and the floating charge. The fixed charge has priority to the preferential debts but the floating charge has not, so he intends to create fixed charge on book debts. However, for the benefit of unsecured creditors, the liquidator always persuade the courts to hold that the perported fixed charge is the floating charge. So many disputes arise.Without registration, the function of the floating charge cannot be worked well as it is most important part of the floating charge. According to companies act 1985(the registration part of Companies Act 1989 does not take into effect), the company registry, a department of the government is responsible for registration of the floating charge in U.K. The company has obligation to register security. It should afford security to be registered within 21 days from its creation. The registrar of companies will issue a certificate of which shows the completion of registration after checking. Besides registration of company registry, it is also needed to register in company. It is void against the administrator or the liquidator or any creditors in the insolvency or winding-up proceeding. If the conditions are satisfied the court almost will permit registration that does not register within the period unless the liquidation or administration has been begun or immediately begun. However, there is often a proviso, that is, the interests of intervention creditors cannot be damaged. The validity of registration in England and Welsh is very special as it is not requirements for against or for perfection(it is a requirement of perfection in Scotland). The floating charge is still valid between the parties without registration within 21 days after creation, although sanctions will be applied. The floating charge also can be valid against certain class of people, such as charges who have not registered their security and purchasers who is not in the ordinary course of business; however, it is void against receivers or liquidators or creditors. Even registered within 21 days, the floating charge cannot be against the subsequent fixed charges except they actually know the negative pledge clauses provided in the debenture. The purchasers in the ordinary course of business are not bound by the registration whether it is registered in 21 days. So registration is not a requirement of against or perfection, however, the floating charge if duly registered is valid against more persons. As to the validity ofrelied upon registration, Companies Act 1985 entitles the third parties relied upon the registration much more confidence than that of Companies Act 1989 because the latter has abolished the conclusive validity of the certificate of registration. There are many problems about registration systems of U.K., such as compartmentalization, complicated proceedings, blind period of visibility and irrelevancy between the time of registration and the priority, as a result, the scholars call on to reform the registration systems and there are three reports written by Lord Crowther, A.L.Diamond and company law review steering group in which the notice filing system is put forward to replace the old system.In respect of the priority between the competing interests, there are four rules established at common law, namely nemo dat quod non habet, legal interest acquired for value and without notice overrides prior equitable interest, a mortgagee may in certain conditions tack further advances for which be will rank in priority to a subsequent mortgagee and priority rules may be varied by agreement. The rules at common law are changed by legislation or cannot work as its original function as a result of the coming of positive law in which registration can give constructive notice to the subsequent charges who can argue that they do not know the prior security. The outcome of a priority dispute concerning registrable interests depends very largely on the particular type of registration system that is applicable, coupled with the overriding effect of s.395 of the Companies Act 1985 where the charge is given by a company and falls within the list set out in s.396 and the company later goes into liquidation or administration. The ranking of a floating charge in relation to subsequent interests arising prior to the crystallization of the charge partly on the type of interest in question and partly on whether the floating charge contains restrictions on dealings of which the subsequent claimant has notice.Crystallization is a bridge of conversion from the floating charge to the fixed charge. After crystallization, a floating charge becomes attached to the specific assets and the current assets and assets acquired after crystallization are the subjects of the floating charge. Crystallising events fall broadly into four groups. First, there are events denoting the cessation of trading by the company as a going concern. Secondly, there is intervention by the debenture holder to enforce his security which deprives the company of control of the charged assets and thus terminates its authority to deal with them free from the security interest. Thirdly, there are other acts or events specified in the debenture as causing the charge to crystallize. Fourthly, in the case of agriculturalcharges granted by a farmer the Agricultural Credits Act 1928 contains specific provisions for crystallization. As to the validity of automatic crystallization clauses, although the automatic crystallization clauses is valid between the holder of the floating charge and the company, because of absence of notice, they does not necessarily entitle the holder the priority over the subsequent creditors. Much of the argument directed against the validity of the automatic crystallization clause fails to separate the issue of attachment and priority. It is assumed that to give effect to the wishes of the parties as to the events that are cause the security interest to attach will as a necessary consequence result in the crystallized charge having priority over a charge with relations between the charge and third parties. But this is a mistake. It must restrict the crystallization clauses to major events that if happened could bring the management to end. Whilst for minor events the creditors can intervene or possession or appoint receivers. Or the court will doubt what is the true the intention of the parties where the parties do not take steps if the crystallization happened. If the parties want more flexibility, they can achieve that by part crystallization.Apart from powers given by law which is helpful to manage or investigate affairs of company, administrative receiver who takes control on the whole or substantially whole assets of company has comprehensive rights in which taking control assets of company, continuation of trade and disposals and reorganizations are the most ones. The duties of administrative receiver derive from equity. Equity has recognized duties of good faith and (on occasion) duties of care for the receiver and sometime the duty has been equated and expressed in terms of the tort of negligence. The administrator is a person appointed by the court in the administration and under the order of administration he has right to manage company affairs, business and assets. The administrator who enjoys a number of distinct capacities such as office of the court, officer of company, agent of company, fiduciary, office-holder is empowered to do all such things as may be necessary for the management of the affairs, business and property of the company. Besides with the same powers as those of the administrative receiver, the administrator is empowered other rights and duties that they are possessed only by him, for example, he has the right to appoint and replace the directors, the right to summon members and creditors and the right to dispose assets free from charge. In the exercise of his powers he is to be deemed to be acting as agent of the company, so a person dealing with him in good faith and for value is not concerned to inquire whether the administrator is acting within hispowers.The development of the floating charge in Japan is limited. Although in Germany the floating charge do not introduce, the same effects of the floating charge can be achieve by different securities. In America, there is a system whose function is same as the floating charge. The English-speaking jurisdictions were compelled to receive the floating charge by colonization. The introduction of the floating charge into the Scotland legal system will conflict with its private law because of the tradition of continental law which is quite different from the English law. The main problems are how to coordinate the floating charge with the present registration system, property law ideas and so on.From: Legal Research英国浮动抵押制度的研究里根·贝克尔信用担保是经济发展的动力和经济增长的发动机，担保与经济的增长和经济活动之促进密切相关，故各国法制十分重视担保制度的建设。