Study Of The Balance Of Interests Among The Parties In The Transferring Of Real Estate Mortgage

The guarantee system in the real estate mortgage system known as the "guarantee of theKing". Because the most adequate to meet the mortgage and free transfer of possession butmortgagor annoyance, play an important role in the economic practice. However, benefit ofthe actions, has also come to harm. Not actual possession of the collateral real estate mortgage,the mortgagee only won the right to change price on collateral,the practice will inevitablyoccur in the mortgagor to the mortgaged property during the mortgage transferred to a thirdperson. Here how to deal with, in fact, involves a balance of interests and value judgmentsbetween the parties.China’s legislation on transfer of real estate collateral design of the system isunreasonable,<Real Right Law> is regrettable that the resolution of this issue. Paper from theassessment of the current system design combined with the legislation of Germany, France,Japan and Taiwan, China to compare investigated by comparing the countries in the interestsof the three parties in the transfer of real estate collateral protection and system design,legislation to improve the transfer system on the real estate collateral in order to moreappropriate balance model, hoping to be helpful. This article is divided into three parts.The first part, analysis of legislative history and legislative status of the transfer of realestate collateral. This section by comparison <Guaranty Law of the People’s Republic ofChina>,<interpretation of the guarantee law>,<Real Right Law>provisions of the lawsand regulations on real estate collateral material transfer of, China’s legislative status quo,conduct analysis, and thus found problems in China’s real estate collateral transfer system.China’s legislative wavering on whether to allow the transfer of collateral to limit the transferof legislative mode in violation of the basic concept of the Civil Code, does not meet theinterests of the parties between the measure and cause the internal contradictions of the legalsystem, and from the values of the mortgage and trading ideas, and economic efficiency andother aspects can not find a legitimate basis, and therefore open to question.The second part, the observed in comparative law on the transfer of real estate collateralsystem. This section is mainly through the relatively Germany, Japan, France, China Taiwan,civil law countries and regions on mortgage owners, assignees, mortgage protection, analysisof China’s direction to balance the interests of the three parties as well as abroad the systemcan learn from. Comparative studies of this part are not limited to the simple object of the legislation on the country for comparison, but from the national legislation of the similaritiesand differences in the starting.The third part, Legislative proposals to improve China’s real estate collateral transfersystem and system design. Combination of the preceding analysis of existing problems andlearn from foreign advanced system on the transfer system of China’s real estate collateral,this section describes the perfection of the transfer system of China’s real estate collateral.China from three aspects to allow the transfer of real estate collateral, to establish a real estatemortgage chase and force to confirm the subrogation system to improve the legislation.The author believes that constructed by the system and taking into account the civil lawconcept of the autonomy of private law, transaction security to protect the social philosophy topromote the objects of circulation attributable ideas to improve the value of economicphilosophy, as well as shared responsibility between the parties, a reasonable balance ofinterests of the parties to resolve the legal system internal contradictions, the better protectionof real estate mortgage system in the interests of the three parties have a certain significance.