The Contradiction And Fusion Between The Chattel Mortgage And The Security Interests In Traditional Continental Law

This essay consists of four parks.The first part represents the contradiction between chattel mortgage and the real right for security in traditional law system. Due to the lack of announcement,chattel mortgage is not in compliance with the traditional principle of property announcement doctrine into effect; the alteration pattern through inner idea makes it a secret property right which is not to the world; the so-called law in which the property right shall not against the third party unless it has been announced, makes the property right lack of the power to function against the third party, in so much that it is set aside by the legislator and put together with the common credit right, which is contradictory to the property right. In a word,the chattel mortgage is not a kind of property right. The bring-in of chattel mortgage tears the system of security interests and impact the concept of property right in traditional continental law system. For example, in the principle of acquiring in good faith, chattel mortgage is short of announcement so that it has no basis, either does the property alteration. Therefore, the principle of acquiring in good faith is not appropriate for it. However, with the development of the economy, a contradiction between the financing market and the traditional chattel security system through alteration possession also involves the civil law. The market’s need of chattel security through non-alteration possession makes us think of the possibility of chattel mortgage.The second part mainly talks about the fusion between the security interests in traditional continental law and the chattel mortgage. Regardless of the closed system for the abstract concept of law, the writer reconsiders the relation between the security interests in continental continental law system and the chattel mortgage with the help of typed-thinking pattern. So that the matter of system fusion can be solved through the methods of interpretation theory, which can also meet the need of reality. The writer thinks that because of the lack of the factors of property announcement, the chattel mortgage can not fuse with the contemporary security interests. The reason for this stereotype, first is being restalned by the logical structure of abstract concept and the thinking pattern of either this or that, second is because of the predesign of system completeness and the lack of reconsideration of the system completeness. The essence of law is the combination of facts and rules. By the interaction of them, law is changing from one of them to accept law as an affluent concrete existence. This kind of thinking pattern established by natural science is shaken by the impact of juridical practice. After world war two, the rising of hermeneutics put an end to the law’s imitation of natural science. Through the efforts of En Jisi, Levin zartlich and Larenz,typed-thinking stepped up to the stage as a thinking pattern opposed to the abstract concept. With the help of type-thinking, we break the limit of concept of law, make up the separation of abstract law to society, and fill the gap between symbols and what they refer to. Finally,chattel mortgage is classified to security interests with the help of typed-thinking and fuses into the open system of security interests.The third part mainly talks about the reasons why chattel mortgage must appeal to the way of registration public under the instruction of typed-thinking. Via typed-thinking, the traditional announcement methods is to be criticized. Therefore, the writer brings in the way of registration public to chattel mortgage so as to construct two main ways for property announcement meanwhile, the possibility of the fusion between the announcement of the mortgage in civil law and the way of registration public in commercial law is proved feasible. Then,from the inside and outside relation of property alteration, the dependence of chattel mortgage to announcement factors and the meaning of property announcement in steady and dynamic state, it is proved that registration public doctrine into effect is necessary, in so much that in 188 th provision of Property Law,which insists on property announcement antaganism, should be criticized. The obstacle of the 106 th provision of Property Law, which makes chattel mortgage can not be referred to is also swept away and the factors needed for acquiring in good faith are reconstructed.The forth part mainly talks about the reconstruction of chattel mortgage. In general, the reason why chattel mortgage can be reconstructed is that it is established upon chattel and needs registration public, which can also be applied to commercial activities. Therefore the system of chattel security interests is established. The announcement of the mortgage in civil law and the way of registration public in commercial law can fuse together. And chattel mortgage acquired in good faith can be reconstructed.