| With the development of market economy, debt relationships are more and more prosperous. To ensure the realization of debt rights, many a creditor set up collateral rights on the same real property, resulting in the competitive exists of real right for security. When two or more mortgages which are all priority rights coexist on the same real property and its actual value after being sold can't satisfy all creditors' claims, the validity of these mortgages will conflict among them. Under such circumstances, which mortgage should be prior to the others? The answer to this question should be directly relevant to whether the mortgaged debt will be paid or not and to what extent. However, the real right law and the security law and the relevant judicial interpretation have very abstract and general regulations on this issue, which can't meet the legal practice.Mortgage sequence is also called mortgage order. In theory, it has general and specific definitions. Specific mortgage sequence means the priority sequence of liquidation for different mortgages on a single mortgaged real property, and general mortgage sequence refers to the priority sequence of liquidation for mortgage and other collateral rights on the mortgaged real property besides specific mortgage. The real right law definitely adopts the legal principle of property rights. It only regulates mortgage, pledges and liens. The paper depends on circumstances of China's present legal system, in contact with related foreign legislations to research the mortgage sequence in comparative measure, systematic measure and balance of interest measure. The paper consists of three parts besides the preliminary remarks.Part one is about the legal history and rationality of repeated mortgage. We should insist the repeated mortgage system, on this basic premise, we should obey the basic require of the register system to adjust the sequence of the mortgages. When the mortgage with higher priority lapses, the mortgage with lower priority should promote accordingly. The article discusses meanings, necessary elements and forces of transfer, waiving, alternation of mortgage in details.Part two discusses the conflict between mortgage and pledge. In the conflict between mortgage that established first and pledge that established later, we should use principle of arranging the sequence according to the time of typical real rights guaranteed established generally. If the mortgage has been registered, it should take precedence over the pledge on the same property. If the mortgage has not been registered, the pledge on the same property should take precedence over it. In the conflict between pledge that established first and mortgage that established later, there may be two kind of situation. First of all, we should make the pledge take precedence over the mortgage generally. Secondly, if the pledgor agrees the pledgee to establish a mortgage for anyone else on the same movable property, we should make the mortgage take precedence over the pledge.Part three discusses the conflict between mortgage and lien. Generally, we should make the lien take precedence over the mortgage. But if there is a debt between the mortgagee and the lienee, we should make the mortgage take precedence over the lien. The article considers that we should differentiate the civil lien and business lien, and give different protection extent because of the different valuation. If the mortgage that established first has been registered, it should take precedence over the business lien. |
