Taking Security in China: Approaching U.S. Practices?

Abstract

This article deals with the legal intricacies of taking security (which in this case means the ability of one party to obtain an enforceable interest in the property of another in order to secure the performance of an obligation) as well as describing how this system functions within the Chinese legal system as a whole. The section on the Chinese legal system forms the background into which the remainder of the article fits. The main issues are the primacy of policy and the historical and cultural influences which shape Chinese law. The article then deals with the creation of a security interest in China. The law consists of not only formal published laws and regulations, but also a practical element, the law in practice. Next, the article deals with enforcing security interests against debtors, third parties, and the government. The issues of self help, informal methods, and finally formal methods are all discussed. Finally, the article deals with the issue of liquidating the security.