| Based on the current legal provisions of China,this paper discusses the basic principles and construction of Registration Confrontation for the chattel mortgage,the syn-position between chattel mortgage and other types of rights,to determine the chattel mortgage Registration Confrontation Doctrine in the legal practice of our country,and further clarify its theoretical connotation and extension from the point of view.The article is divided into four chapters.The first chapter briefly outlines the chattel mortgage system.After entering the modern era,chattel mortgage has been recognized in many countries（regions）.It is common to adopt Registration Confrontation Doctrine for chattel mortgage in the legislation throughout the world.This chapter briefly introduced the main legislative samples of Registration Confrontation in France,Japan,United States,China Taiwan and mainland China.The second chapter analyzes the basic meaning of Registration Confrontation.The first section analyzes various theoretical structures for Registration Confrontation in Japanese law,and holds that "the third person advocate" is the theoretical structure which is most suitable for Registration Confrontation in China.The second section introduces the understanding of the term "confrontation" in Chinese theoretical circle,and points out that the nature of confrontation between chattel mortgage and other rights is the right syn-position.The third section analyzes the confrontation and credibility of chattel mortgage registration.The author believes that chattel mortgage registration only has confrontation right.Chattel mortgage registration and the "third person advocate" can achieve a unified interpretation of the registration of confrontation from both inside and outside of legal relationship in chattel mortgage.The third chapter analyzes the scope of the third person.In the first section,by analyzing the theories for the scope of the third person in Japan and China,the author proposes that the third party to whom the chattel mortgage(which is not registered)shall not confront with shall be within the effective trading relationship of the chattel,and its syn-position shall be decided according to whether the chattel mortgage has been registered.In the second section,by analyzing the development of theories for the subjective state of mind in the Japanese law and combining with the current situation and legislative purpose of China,the author puts forward that the subjective aspect of the third person should follow current rules.The third section puts forwards that,from the perspective of social costs,currently China should expand the scope of the third person and limit the effectiveness of unregistered chattel mortgage,to stimulate registration,and promote the chattel mortgage registration system.The fourth chapter analyzes the various situations in which chattel mortgage and other rights are confronted.The first section proposes that no right person and chattel mortgagee do not have to confront.The second section analyzes the chattel mortgage can be confronted with the bankruptcy creditor,the detaining creditor,the seizure creditor,etc,and the Registration Confrontation shall be applied.The third section analyzes Article 190 of the Property Law shall not be applied between the chattel mortgage and the right to lease,but the chattel mortgage registration confrontation.The fourth section analyzes the chattel mortgage in the transfer of collateral.The transfer of collateral without the consent of the chattel mortgage does not affect the validity of the contract of assignment,but the real right does not change.Registration Confrontation can only play a role in the place where the mortgagee does not give consent to transfer.The fifth section analyzes the confrontation between chattel mortgage and other property right.The confrontation between movable mortgages shall adopt the special provision of article 199 of the Property Law;chattel mortgage and pledge shall adopt the Registration Confrontation with exceptions;Registration Confrontation shall apply to commercial lien and chattel mortgage,and general lien shall be superior to chattel mortgage based on legislative policy.Starting from the point of view of law,the author intuitively observes the connotation and extension of chattel mortgage Registration Confrontation from the concrete right confrontation.Because of the consideration for special interests of ourcountry in the current legislation such as the nature of special rights and other reasons,the Registration Confrontation has not been fully applied in the rights confrontation.The analysis of the author finally settled in the point that the chattel mortgage Registration Confrontation should be applied in the chattel mortgage’s confrontation with other rights in most cases. |
