The Practical Study On The Judicial Identification Of Malicious Mortgage

Mortgage is a common way of guaranteeing the debt.While it is widely used in practice,it also produces many legal issues,including malicious mortgages.At present,our country's laws only expressly stipulate that the mortgage created afterwards constitutes a malicious charge.However,when the mortgage that was created at the same time constitutes a malicious charge and the subject that has been infringed is not a creditor but is the other claimant,it does not provide for a regulation.Therefore,in the judicial practice,there are still many obstacles in solving the problem of malicious mortgages.This article analyzes in-depth analysis of the three main issues of whether a mortgage that is established at the same time constitutes a malicious mortgage,whether the malicious mortgage should apply Article 52 of the Contract Law,and how the relief of a malicious mortgage when there is a claim on the mortgage.Build a complete legal system of malicious mortgages.This article is divided into five chapters:The first chapter mainly adopts the typical cases in the three judicial practices,and puts forward the relevant issues involved in the malicious mortgage system.The second chapter defines the concept of malicious collateral and divides it into:first,the case of malicious collusion leading to the third party's interest in the afterfavored mortgage;second,the situation in which a simultaneous mortgage may constitute a malicious collateral;and third,the collateral There is a situation where there is a malicious charge when there are other claims.After classifying them,the provisions of the "Law of Security" and "Contract Law" concerning the malicious and mortgage are listed,and the legal consequences of the exercise of the right of withdrawal and its exercise are analyzed,and the malicious mortgage under the current legal provisions of our country is analyzed.System deficiencies explain.The third chapter analyzes the situation of malicious collateral that lead to the harm of third parties and damages the malicious collateral.First of all,it makes a detailed description of the subjective elements of "malicious collusion," namely "malicious",and secondly,it identifies the objective elements of malicious collusion.On the basis of the analysis of the requirements,it is analyzed that the application of Article 69 of the Judicial Interpretation of the Security Law can protect the interests ofcreditors more than the provisions of Article 52 of the Contract Law,and it can also maintain the uniformity of application of the law..The fourth chapter first analyzes that the mortgages that are set up at the same time can also be used as malicious mortgages,and sum up the situations that may constitute malicious mortgages.Because the law of mortgages established at the same time is not regulated by the law,it is necessary to refer to the constitutional elements of the contract revocation right to discuss the constitutive requirements of the malicious mortgages established at the same time.It is concluded that when the mortgagor establishes a mortgage,when both parties' transactions are paid or unpaid,Causes the mortgagor to lose the ability to pay.When these two kinds of transactions occur,the simultaneous mortgage constitutes a malicious mortgage,and on this basis,it is discussed how the malicious mortgage at that time should be determined and Article 74 of the "Contract Law" should be applied by the creditor to exercise the cancellation right.According to the problems involved in the case,the fifth chapter analyzes that when the mortgage behavior leads to the infringement of the rights of the right holder who has the right to claim the mortgage or property rights,it may also be considered as a malicious mortgage.And analyze the ways of remedy of rights holders who have claims for rights or claims for property rights,and conclude that the rights holders who have been infringed upon by malicious acts of mortgages have the right to request cancellation of mortgage behavior.A right holder who has been infringed upon by a malicious act of infringement and who enjoys the right to request for property shall,when it does not constitute good faith,apply the legal provisions that the contract is invalid.When property rights and claims exist at the same time on the collateral,the oblige may also claim the damages from the mortgagor instead of requesting cancellation of the establishment of the mortgage rights.