On Interests Weighing In The Order Of Mortgage

Mortgage order is also called mortgage sequence. There are narrow sense and broad sense about it. We are using its narrow sense in this thesis. It refers to the order of being paid when there are more than one mortgage on a guarantee. This thesis starts with interests conflict. It weighs and judges the relevant interests involved in mortgage in the way of interests weighing and researches on relevant questions in mortgage order.The thesis has four parts.The first part talks about the relation of establishment of mortgage and validity of public announcement. It criticizes the validity of registration in Property Law. According to current value orientation, trade security should be protected in priority when it conflicts with trade freedom. All the systems designed for trade security must be surrounding the aim of protecting trade security, but they can't sacrifice trade freedom willfully. Taking public announcement as valid requirement when property right changes is not good for balance between trade freedom and trade security. It will protect trade security overly. Taking public announcement as opposed requirement can well balance trade security and trade freedom.The thesis doesn't agree that establishing real estate mortgage without registration will harm ordinary creditors'interests. Guarantee system itself is set to promote financing by depriving ordinary creditors'interests. It is a limitation to ordinary creditors'interests under weighing relevant interests. It is guarantee system that limits ordinary creditors'interests, not registration, so we can't use registration to judge whether ordinary creditors'interests are harmed or not. Registration is to balance interests between mortgagees rather than mortgagees and ordinary creditors.Taking public announcement as opposed requirement can adapt the need of social adjustment better than taking it as a valid requirement, and it shows more adaptability and power of explanation. The thesis holds the view that we should take registration as an opposed requirement, when property right including mortgage changes. This view will run through the analysis and argument of the other three parts.The second part talks about some questions in determining the mortgage order. It deems that the rule in the 199th article in the Property Law should still be applicable as the standard to determine mortgage order when the registration is taken as opposed requirement. While determining order of mortgage, the mortgage without registration can't oppose other mortgagees, including mortgagees who know the facts. That is good for making use of the property and financing, and is good for carrying out registration system and protection of relevant trade security and mortgage security.The registration order is determined by the registration time. The registration time isn't simply the recorded time or applying time. It should take different standards according to concrete situations. When the third party's interests are involved, as for the third party, registration time should be taken, this is also implementation of registration's public trust and protection of trade security. When it's only between those directly involved, applying registration time should be taken. When damages are made by the mistake of registration administration, the registration administration should take responsibility.The third part talks about order promotion and order fixation. It deems that order promotion and order fixation have both good and bad aspects. It is not adoptable to deny order promotion or order fixation completely. The concerned parties'will should be given free space when the law defines rules of mortgage order. Thinking in this way, we have two plans to choose: taking order fixation as primary principle and order promotion as secondary, or taking order promotion as primary principle and order fixation as secondary. When the concerned parties can make an agreement, they have space to judge and choose their interests. Whatever plan is adopted, it won't make imbalance between mortgagor and mortgagee in back order. So which plan should be adopted at last is determined by legislation policy .But legislation policy should consider the need of practice and society and also consider interest promoting and weighing. Comparably speaking, when there is no agreement between the concerned parties, order promotion can better meet the society's needs, balancing and promoting interests in all aspects.Mortgagor can only set mortgage in back order. In fact it's mortgagor who uses a part of the guarantee's value to set mortgage and meanwhile reserves some value for himself. Mortgagor may also make agreement with mortgagee about the order. In this way, he can reserve some'vacant position'for new financing.The fourth part talks about order disposition. Order disposition mainly includes order transfer, order abandonment and order change.The concerned persons in order transfer should be the mortgagees of the same guarantee. This won't harm debtor and other creditors'interests. The effect of order transfer should take the theory of inner priority change. This theory won't affect the concerned parties'trade security and interests. It well considers the parties'free will. In this theory, mortgage in the same order can also realize order transfer without any theoretical obstacle. Order transfer only makes effect between two parties, so registration is only the opposed requirement rather than valid requirement. After the order transferred, the debtor pays off the debt with no necessary to get the transferee's permission. Otherwise it will damage the interests of the debtor, the third person who brings the mortgage and other mortgagees. Even if order transfer is permitted by the debtor, if the debtor pays off the debt with other property, the mortgage of the transferor also perish. Otherwise it will cause mortgage and debtor to collaborate with malice and make other mortgagees'right void. Other mortgagees'interests aren't stable and it will harm the mortgage security. In order to balance the transferee's interests, the law should permit transferee to deliver the damage involved in the transferred money to the transferor, that is to let the transferor take responsibility in the range of transferred money. Order disposition includes absolute abandonment and relativeabandonment. Absolute order abandonment makes effect to mortgagee existing when abandonment happens. It makes no effect to mortgage set after abandonment. Abandoner's mortgage is prior to mortgage set after abandonment. Relative order abandonment makes effect only between the concerned parties. It doesn't change the order of mortgage. Parties concerned get payment at the same order inside, but the debtor, mortgagor and other mortgagees'interests won't be affected. The beneficiary from order abandonment can't realize abandoner's mortgage, he can only realize his own mortgage, or it will damage mortgagor and debtor's interests. Interests'relation is very complicated after the mortgagee's disposing the order in the case of common mortgage. Making the relation clear relies on dealing with the problem of how to realize the common mortgage. This thesis deems that debt should be shared according to the price of the guarantees. If the guarantee in prior order is paid by one of the guarantees, other mortgagees on this guarantee replace him to get the payment in the proportion of how much he should take from other guarantees.Order change should get the agreement of the mortgagees who are in the middle order rather than all mortgagees. Besides that, it should also get the agreement of other persons whose interests are involved in. Order change has no relation to the debtor and mortgagor's essential interests, so it doesn't need to get their permissions. Registration can't be valid requirement of order change. It should be the opposed requirement.Legislation on the mortgage order in our country is too simple and crude. This thesis only analyzes and weighs system and interest relevant to the topic. The further research will be done in the following study.