Reserch On The Maximum Mortgages

The maximum of value of hypothec is a special sort in the mortgage guarantee system, which has gotten a rapid growth in China recent years along with the integrated progress of economy of the country. And the model has been widely adopted by numbers of financial firms and corporations. Generally in some advanced countries in this field such as Japan, the highest limitation line enacted in the laws of the state of mortgage has been used much more widely than the ordinary model However, in our country the highest mortgage limitation up till now still looks a right of unclear sort. Although there is a propitiate emendation on the item in the new code Property Code of China, yet, comparing with the other country's there are much unreasonable faults that have the actual practices and operation become very difficulty. Therefore, it is a necessary to conduct in-depth researches on the problems. Perhaps some of Civil Laws around the world may be a good reference for us to establish a perfect comprehensive code of highest mortgage of our country, which should be clear for implementation and operation.This paper is focused on an in-depth analysis to and compurgation of differences of the highest mortgage codes of a number of countries'in connection with concepts, ideas, values and contents. Based on which, I bring out a suggestion or a proposal on how to improve our highest mortgage system. This paper can be divided into three chapters besides the Introduction and Conclusion.Chapter I is an overview on current highest mortgage system of our country and then the paper comes to an introduction to systems of the same field in the foreign countries, an overview of concepts and scopes of application. Meanwhile, I analyzed the lawful characters of the system and summed up as: unascertained but successive liabilities within a certain period, pre-set highest limitation and final balance date, and some of other properties. In my opinion, the Germany highest limitation of value of mortgage system is the most perfect one in the world up till now and I also think legislation our system should be based on a turning from the original value preservation orientation to investment orientation.Chapter II aims at comparison to highest value limitation of mortgage of foreign countries among various countries and our China in connection with arrange, setup, change, disposition, division and final balance and so on in the laws. Based on which it becomes easy to find what the insufficient and lacking three are in our system and how to deal with those problems, The analysis also comes to the legal relationships, quantity and scope of mortgage guarantee (whether it is limited only for principal) and so forth, based on which the paper sets forth a propitiate definition on the mortgage guarantee of our country and its scope applicable. The analysis moreover come to an comparison of the setup of mortgage model, persons involved or party concerned, registration as well as regulations and requirements of in the laws of foreign countries and our country, Also I discussed the possible changes prior to confirmation of mortgage including both bodies and contents mortgaged. And the former mainly refers to the change of person or party involved, debtee and debtor and mortgager and the later the change of scope, limited value, financial balance limitation and so on, Under the Code of Property Ownership of China in connection with relevant provisions of highest limitation of mortgage transfer and alienation, I conduct an analysis to major contracted liability transfer and sole alienation. As for the final balance, I also have a comparison of various legislation and jurisprudence differences of foreign countries and China with respect to realization, ascertaining and canceling. We may find easily there is a big difference in the field because of diversity of economic level of each country. Then I come to the focus of how to conduct highest limitation of mortgage in our country, methodologies, measures, conditions and ways, as well as significances, natures, reasons and effects. The author of this paper considers that it should be available for application requested by debtee of guaranty in behalf of owner. What are the major reasons that lead to demise of mortgage is also my research in the paper, and the conclusion come is as follows: 1. The demise of major liabilities causes the demise of mortgage; 2. Application of mortgage causes the demise of mortgage; 3. Implementation of application causes the demise of mortgage, and so on. I compared the diversity of legislation with respect to demise in Germany, Japan and China and I think it is a pretty sound reference for use to learn how to destroy application system as Japan ever did.Chapter III comes to consider of the shortages of the current highest limitation of mortgage system of our country and have a statement on how to perfect the system based on a design and some of specific measures. There are much institutional shortcomings with respect to mortgage system, too simple, rough and loosen. It is required a revise and integration. The provisions in connection with mortgage in the Code on Property Ownership of China give a scope that is too wide and unspecific and unclear, it is a need to restrict its range, contents and model as Japan does. In the event that moveable estate is taken as mortgage it should be restricted to production materials only that have relatively high value. It is a need to formulate highest limitation system on mortgage, deduction application system, demise application system to breakthrough the limitation of mortgage. The German practice is a good example for use to learn, which a mortgagee may directly apply court for enforcement on auction in case that there is no depute arose from the contract and litigation proceeding is unnecessary. It is a need to make sure of the rights of how to operate the single mortgage prior to expiration for final balance of many mortgages. Mortgagee should have the rights to operate maximum amount of mortgage for that liability of single mortgage unbalanced when expiration reaches under the highest limitation. It is also a need to make sure that the costs to get mortgage should not be counted into highest limitation because it has shared the highest limitation, otherwise the interests of mortgage might be harmed.As a summary, the paper sets forth that mortgage of maximum amount has special values in economic construction and therefore it is necessary to avoid from fault and shortcoming in the system and try best to perfect it to provide one of strong bases of economic development smoothly in the country.