The Interpretation And Application Of The Floating Charge

As a new Mortgage System in Property Law,Movable Property Floating Charge System always has the advantages of low frequency of utilization andeasy to be confused.After consulting many real cases in the "China Judgements Online",the author has found four problems that must be solved.In this paper,the author will expanded these problems in terms of the legal interpretation and applicable scope to solve the problems related and improve the usage rate of this system.First,if the movable property Floating Charge is not registered,in some cases,the "third person with goodwill" can get the pawn.However,for the"third person with goodwill",if its definition should be expanded is controversial in this field.Specifically,first,the point of argument is that if this third person should be distinguished as "well-meanings" or "vicious";second,if the general creditors should be included in the "third person".The definition of the "third person with goodwill" should be expanded purposefully,it not only includes the person with subjective goodwill but also includes the third person with no matter subjective goodwill or viciousness;the hypothec without registration can conflict with general creditors,no matter the subjective state of mind of the general creditors.Second,the problem of the order in compensation of the movable property Floating Charge and other security interests.For the competition in Floating Charge,what should be strengthened is that if it is not registered,it cannot conflict with the" third person".For the priority between Floating Charge and fixed mortgage,it is should be discussed base on the specific cases.If only after the fixed mortgage is built,is the Floating Charge fixed because of something,then fixed mortgage should be privileged.In this case,there are rules in England:if the fixed mortgage has the negative pledge clauses and also the clauses have been registered,then the fixed mortgage cannot be compensated preferentially compared with Floating Charge.If the pledger also build the fixed charge after the Floating Charge is fixed,then,this problem becomes a priority problem between two rights with the same character and should be solved in the general principles of mortgage sequence.For the priority between the Floating Charge and the pledge of the collateral,if the Floating Charge is set up in the first and also registered,it should take precedence over the pledge,if not,it have no priority;if the pledge is set up on the property before the Floating Charge,Pledge has the priority.The right of lien should be given priority in the case of Floating Charge and lien.The third question,the governance of the fraudulent claims in the use of Floating Charge system,there are two main paths:the first path is the reverse application of the "Property Law" Article 189,paragraph 2,so as to protect the right,however,the definition of "normal business activities","has paid a reasonable price" and "the buyer has obtained mortgage property" should be explained;the second path is that the mortgagee use their rights of revocation.The path asking for the help of honesty and credit principles should not be accepted.The fourth question,the realization of the mortgage after the crystallization period.In addition to the realization of the mortgage agreement,implementation of procedures and real right should be relied mostly to achieve the program.However,the special procedures for the realization of the security interests in our country do not take the particularity of the Floating Charge into account.As a result,there are difficulties in real implementation.It is suggested that the system of property takeover in English law should be introduced to strengthen the overall liquidation and disposal of the guaranteed property.