On The Order Of The Mortgage

Mortgage, as one part of real right, known as the "King of the guarantee", has animportant role in economic development, and it does not transfer the possession of theguarantees; it gives full play to the effectiveness of the guarantees. With the development ofmarket economy, corporate financing needs is growing, but social resources are limited in agiven period; in order to maximize the utility of things, it often seems that more than onemortgage is established on the same guarantee. Thus, the provisions of the order of mortgageare necessary to the realization of debt. The order of mortgage, as civil entity-procedural right,is very important to economic development. Based on this, this paper focuses on issuesrelated to mortgage in order to mortgage applicable in solving disputes. Comparative researchmethods are used in this paper, firstly, the author studies the legal system of some countries orregions, in order to explore one of the differences; secondly, makes some suggestions toimprove China’s legal system. The paper includes the following sections:The first section is the reason of the order of mortgage. The system mainly related are thebalance of mortgage and repeated mortgage, but the order of mortgage is only produced in therepeated mortgage, and then analyzes the reasonableness of the repeated mortgage. With theconstant improvement of the registration system, the repeated mortgage has operability, so therepeated mortgage has feasibility in the law and practice, and China’s "Real Right Law"admits the repeated mortgage.The second section is the determination of the order of mortgage. The rules to thedetermination of the order of mortgage are closely linked to the public system of the real right,and different public systems have different rules of determination. There are three publicsystems: essentials doctrine, against the doctrine of publicity, syncretism. China’s "Real RightLaw" takes syncretistic model on distinguishing movable and immovable property. Thissection mainly around the public system of the real right discusses the determination rules ofthe order of mortgage in China’s " Real Right Law ".The third section are ascending principle and fixed principle. Firstly, the author analyzesthe choice of ascending principle and fixed principle of some countries and regions, and thendescribes the system of China’s law. Ascending principle and fixed principle are not clear inChina’s law, but scholars think that China takes ascending principle, and ascending principle is taken in the practice. Secondly, the author analyzes the debates including the choice andquestion of the two legislative modes. Finally, the author discusses the choice of China’slegislative, and puts forward relevant proposals.The fourth section is the disposal of the order of mortgage. The section mainly discussesabandon, change and alienation of the order of mortgage. Firstly, the author analyzes theconcept of the abandon, change and alienation of the order of mortgage, and then analyzes theconstituent elements of these three methods, finally analyzes the effectiveness of the threemethods. On the effectiveness, the change’s is relatively simple, but the abandon and thealienation have Absolute effect and relative effect, and different effectiveness modes havedifferent legal consequences.This paper has the above sections, and uses comparative research methods. The authoranalyzes the legal system of some countries and regions. Economic base determines thesuperstructure, and any kind of legal systems must be with the actual situation of a country orregion, only in such circumstance, social and economic development will be better and better.The modification and improvement of our legal system must also respect this rule, and wemust absorb foreign legal system on the conditions of our country. The author hopes that thisstudy can provide some suggestions for the improvement of China’s legal system.