On Capital Contribution Of Mortgage And Its Legal Regulations

The practice of using mortgage as the object of physical capital is rarely prohibited by legal provisions in foreign laws. However, it's inclined to strictly exclude its legality in our legal practice. As the same time, most Chinese scholars take the negative position. But they even show no deep look into the matter on using of mortgage as the object of physical capital. The essay has adopted such methods as value, system, comparative or positive analysis. The author gave a deep analysis of the connection between mortgage system in Civil Law and capital system of company and discussed certainty of using mortgage object as physical capital. Furthermore, the author made a clear-cut provision for the undertaking of liability for using mortgage as capital contribution. Finally, the author put forward suggestions as to the realization of mortgage as means of capital contribution in legal practice. There are four chapters in total:Chapter I : It's the risk analysis of the using of mortgage as capital contribution and the critical argument against the traditional view that it's only for the sake of capital safety of a company so as to completely forbid the using of mortgage as means of capital contribution. The Author pointed out the defects existing in the "positive doctrine" which directly borrowed the mortgage system in Civil Law for the solution of the using of mortgage as capital contribution. The author simultaneously analysed the ideas of efficiency, equity & safety and concluded that the existing mortgage system in Civil Law and company capital system both have contributed to the framework building of the realization of using mortgage as capital contribution. The author considered that the framework built is reliable and helpful to improve the existing capital contribution system of actual capital.Chapter II: It's the comparative analysis of the specific kinds of object used for physical capital contribution in different countries. The author analysed the adequacy of object used for physical capital contribution and required our law to enlarged the scope of objects qualified for capital contribution. And the author defined the acceptablerange of mortgage which can be utilized as object of physical capital contribution.Chapter III: It's the intensive analysis of the interconnection between the mortgage system and the incorporation system of a company and suggested clear guidelines to the realization of mortgage as physical capital contribution.Chapter IV: It's the list of suggestions as to the perfection of our system of the physical capital contribution, the consolidation of liability for the providers of the object of physical capital and incorporation of a company and the avoiding of risks incurred by the defective capital contribution of mortgage.