On The Regulation Of Coexistence Of Mortgages And Pledges On The Same Collateral From The Perspective Of Legislation In The P.R.C

Security interests play an important role in safeguarding the creditor’s interests. In order to make the most of the exchange value of a property, more than one security interest, whether of the same kind (e.g. several mortgages) or of different kinds (e.g. mortgage and pledge, or mortgage and lien), may be attached to the same collateral. In the event that security interests of the same kind that coexist on the same collateral conflict with each other, the law expressly provides for solutions. By way of example, in case of coexistence of more than one mortgage on the same collateral, the law prescribes the rule of priority of record and that of priority of establishment for the purpose of assuring the performance of the secured obligation and alerting a creditor to the coexistence of mortgages.The coexistence and conflict of different kinds of security interests, especially on the same chattels the mortgage conflict with the right of pledge."Guarantee Law" is not clearly regulates. The regulation of the Article79in the "Guarantee Law of judicial interpretation" of is popular with criticism and in practice likely to cause the confrontation and conflict between the pledgee and the mortgagee. With the "Property Law" promulgated in2007,"Judicial Interpretation of the Guarantee Law," Article79should not apply any longer, but it also does not have written regulations of the coexistence and conflicts on the same chattels, this bring some difficulty of operation. Based on learning, judicial practice, the analysis of mortgagee, pledge and possession, the author puts forward the regulation and solutions to solve the conflicts between the mortgage and the pledge.The paper includes three parts except the introduction and conclusion.The author mentions some questions, as well as the writing intention, research purpose and the significance in the introduction part.The first part:the causes of conflict between mortgage and pledge, and the current regulation:Explained the inevitability of conflict between the rights, through the development of mortgage and pledge, discuss the causes of conflict in our country and the defects in the current regulation, declare the necessity to formulate the regulation to solve that conflict.The second part:the present types of the conflict between the mortgage and the pledge on security collateral. Through analyze and discriminate the concept of the competition, cooperation, and coexistence between the mortgage right and the pledge, then summarize the current competition and coexistence type respectively: the one is mortgage first, the other one is the pledge first; Simultaneously analyze the mortgage, pledge, warehouse receipt conflict with Warehouse receipt, bill of lading under the chattel mortgage. This is the foundation for conflict regulation analysis in the next part.The third part:conflict regulation of the chattel mortgage and pledge in coexistence with the property. The "Property Law" Section239states "legal possession is first", combined with the system of acquiring right over the property of another, puts forward the specific conflict regulation of the mortgagee and the pledge, so we get a conclusion that "legal possession is first", and the pledge shall be priority to the mortgage which is not register or post-registration. The mortgage first register is not fight against the pledge with good faith; acquiring the pledge with malevolence has no priority; obtaining the chattel mortgage registration under warehouse receipt or bill of lading is better than the pledge of the warehouse receipt or bill of lading.The conclusion part is a summary, hope the coexistence and conflict between the mortgage and the pledge can be extinguished and concluded.The innovation of this paper is (1) based on the occupation, through the analysis of acquiring the right property of others, the occupation is priority. The publicity effect of chattel mortgage registration only has the confrontation effect, but can’t fight against the innocent obtainer; here is not the ownership obtainer with good faith, but the right of others.(2) Obtaining the right property of others with malice has no priority.(3) Put forward the other form of the mortgage conflict with the pledge, the chattel mortgage conflict and cooperation with the right impawn, that is the pledge of warehouse receipt or bill of lading conflict and cooperation with the chattel mortgage under the warehouse receipt or bill of lading.The main shortcomings are:that there is not any related regulation system, literature, case study collected about the conflict between the mortgage and the pledge. So there is no comparison, the research is just based upon only on the domestic situation, maybe like the frog in the shallow well.