Theory Of Transfer Of The Mortgaged Property Effect Of Legislation In Our Country

Process of transfer of the mortgaged property embodies a concentrated reflection of the conflict of interest between the parties in the mortgage legal relation, how to balance the interests of all parties, is the key to the implementation of the mortgage system can function. Legislation on the transfer of the mortgaged property system in our country have different rules, "property law" the 191th vague on the regulation of the system, academic circles is generally believed that the article limits the disciplinary right of the mortgagor, nor the chase and effectiveness of a mortgage to confirm. This literally, which results in the transfer of the mortgaged property relationship of interests between the parties imbalances, also cannot reflect the mortgage system in pursuit of the "best" value, and denies the hypothec itself is chasing and effectiveness and to seek preferred payments in the system of connotation, it is not in the traditional civil law theory of property rights, and can’t explain and interpretation of history, system, purpose, interest measure to explain each other. The author thinks that, in the property law, the current "security law" and "security law explanation is still effective under the background, should be combined with the various legal interpretation methods, from the Angle of theory of interpretation to reconcile the gap between the current law of the system, trying to find out the most reasonable understanding, hope can reasonable guidance to the judicial practice.This article is divided into five parts. The first part of the introduction clearly put forward in this paper, the study problem. Related provisions in the second part first to transfer the mortgaged property system were analyzed, and pointed out that countries generally allow free transfer, mortgage and give to chase and force; To point out that in China, the legislation on the transfer of the mortgaged property system changes, also points out that the educational world to understand the system related stipulation existence question.The third part, from the Angle of explanation theory, analyze our country "property law" the 191th regulation, it is concluded that China’s legislation on admitted that mortgage right have chased and effectiveness allow free transfer of the mortgaged property on the basis of the conclusion. The fourth part demonstrates the conclusion in this paper, the third part of legal principles:first, the mortgagor shall have the right to legally dispose of the mortgaged property; Second, the inclusion of chattel mortgage, after registration of mortgage right back. Third, the assignee shall be protected by legal system related to. So the necessary laws restrict the transfer of the mortgaged property. The fifth part combed the full text of the main points, the full text summarized.