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随着我国经济的发展以及市场主体的多样化,我国《物权法》也引进了浮动抵押担保制度,其立法原意是解决我国中小企业、个体工商户、农业生产经营者的融资贷款难的问题。当然作为我国引进的一种新的担保方式,还存在很多问题,需要不断地改进及完善。我国很多学者都主张限制浮动抵押的设立主体,尤其是对中小企业、个体工商户和农业生产经营者。但是限制主体并不能达到我国的立法原意。针对以上三种主体无法或很难利用浮动抵押制度获取贷款的问题,建立相应的保障制度才是解决问题的关键所在。具体而言建立债权人利益保护机制、实施根据设押主体确定抵押财产的范围的规定、规定明确的实现方式以及针对三主体建立信用评估制度。
With the development of China’s economy and the diversification of market players, China’s “Property Law” has also introduced a floating mortgage guarantee system. Its original legislative intent is to solve the problem of difficulty in financing loans for small and medium-sized enterprises, individual industrial and commercial households, and agricultural producers and sellers in China. Of course, as a new guarantee mode introduced by our country, there are still many problems that need to be constantly improved and perfected. Many scholars in our country advocate restricting the establishment of floating mortgage, especially for small and medium-sized enterprises, individual industrial and commercial households and agricultural producers and operators. However, the main body of restraint does not meet the legislative intent of our country. In view of the above three kinds of subjects can not or difficult to use the floating mortgage system to obtain loans, the establishment of the appropriate security system is the key to solve the problem. Specifically, the creditor protection mechanism should be established, the provisions on the scope of the mortgaged property determined according to the principal of the mortgage should be implemented, the definite mode of realization should be stipulated, and a credit evaluation system should be set up for the three parties.