The Study Of The Mortgage Contract

Since the law is not to stipulate the contract debts.In the judicial practice of repossession contract in most cases is regarded as a nameless contract for processing according to the general rules of contract processing,or as the datio in solutum operation,the lack of uniform regulations.In theory,our country about the system with less research material debt contract,only some civil law scholars have some concern.From abroad,in order to distinguish the contract for debts is not clear.The first part is the introduction,including the purpose and significance of the topic,research status of repossession contracts at home and abroad,research methods and innovation.The second part is the general problem of repossessed contract,including the concept of repossessed contract and contract of the same approximation.Repossession contract is after parties,with substitutes for the original payment contract,the need to set up many factors: the original debt contract in existence,effective after the expiration of the original creditor,alternative payment with the original payment,to replace the original different payment,need special legal provisions or the agreement of parties.In practice,often with the datio in solutum,liquid contract,new debt liquidation and other similar concepts to confusion,actually repossession contracts as an independent form of the contract and the contract are fundamentally different.The third part is to set off the contract nature and effect.With the increase in the number of mortgage contract,the nature and effect of the academic circles and judicial practice,but each one sticks to his argument has strong practical significance,thus to explore the nature and effect of the.We should first of all to that contract for repossessed contract is a promise,the burden of behavior.The effectiveness of the contract on the basis of different time will produce different results.The fourth part is about the conflict problem domain repossession contract system.Repossession contract in China is not a contract,the legislation does not require.In judicial practice,to handle the repossessed contract there is chaos,around the courts on nature,repossessed contract validity and effectiveness of the problem and no consistent views and processing method.In reality,in order to repossession contracts because the parties involved in the conflict between the parties are more obvious,mainly focus on the conflict between the creditor and the mortgagee;general creditors and priority of claim of the conflict between people.The fifth part is to improve the system of the contract debts.The number of mortgage contracts there should be unified regulation.Legislation should be set up by special legislation of repossessed contract,determine its nature and effectiveness,determine the evaluation rules;the administration of justice,judicial interpretations promulgated,guiding cases,judicial rules,to fight in the courts at all levels of repossession contracts have a unified understanding and processing results.Aiming at the conflict of repossession in the contract by the parties,should distinguish between movable and immovable property,arrived after the first charge,first arrived adjourned independently;according to the priority should be to prevent the abuse of registration.Through research and discussion,can form a reasonable repossession contract framework,improve all aspects of the contract related to repossession.On the one hand,as between the parties to provide reference for repossession when the contract is signed,both parties make clear the rights and obligations of their own.On the other hand,to provide a direction for the court to resolve conflicts,to provide a legal basis for the final decision cases.In short,this paper is devoted to the construction of theory to solve practical problems.