Research On The Collateral Transfer System In China

Mortgage not only can play the financing function, but also does not affect the mortgagor continue to use, income, dispose of the mortgaged property, therefore called "the king of guarantee". And transfer of the mortgaged property involves both the mortgagor of the real right of disposition, the mortgagee of the mortgage right, also relates to whether the third assigns ownership. How to balance among the interests is an important considerations in system design. "Property law" the 191th still have a lot of the rules of the fuzzy and deficiencies, such as to the ownership of the mortgagor is restricted? The mortgage right have chased and force? Without consent after the transfer of creditor’s rights and real right effect how? The mortgagee shall agree to transfer means that the mortgagee to give up the mortgage? As well as how to understand "non-negotiable" are not clear. Due to the mortgagor without the mortgagee consent is caused by the transfer of the subject matter of litigation, particularly in the mortgage is still in the state of the housing, the original homeowners are without the bank agrees to buy and sell on the burden of the lawsuits caused by the housing is increasing, so the transfer of the mortgaged property system has important guiding significance to judicial practice.on the basis of the concept, classification and development of transfer of the mortgaged property system, Elaborating the main analysis demonstrates that our country academic circles and judicial practice of "property law" the 191th, especially about the transfer of the creditor’s rights contract effectiveness without authorization, the real right, and subject to consent by the mortgagee mortgagee loss of hypothec; These problems had to study whether the property law in current China acknowledged hypothec chase and force, whether the mortgagor loss to the subject matter of the disposition, and if no clear admit chase and force, whether it’s necessary to admit chase and effectiveness. After analyzing the existing theory of various views, and draw lessons from the continental law system and Anglo-American law system, the rules of the thought that China should clear hypothec after and force. In view of the special chattel mortgage, draw lessons from the practice of the continental law system, strengthen the special forms of publication of the chattel mortgage, strive for commenting on the problems existing in the perfect.