Reflection On The Rules Of Transfer Of Pledged Rights And Improvement Of Legislation

The development of modern society has brought about a large increase in the types of property rights in the civil law,and the rights to enter the transaction and financing market have also been included in the broad sense of the category of "things" in the civil law.The concept of "right pledge" first appeared in the guarantee law of China,which is the legislative recognition of the guarantee value of rights as intangible property.The property law rights pledge as a kind of real rights for security,not to give full consideration to the particularity of the object and the characteristics of the publicity system,related laws and rules apply mutatis too shallow,the research of the property law scholars put much energy in the traditional real right theory,ignoring the rights pledge,the status of legislation and judicial practice,especially in transfer rights transfer rules.According to the provisions of article 226-228 of the property law,the pledge right of accounts receivable,equity and fund shares,and intellectual property right shall be registered as the establishment requirement,and the pledgor shall not transfer the pledge right.However,due to the legislative defects in the regulation of restricted transfer,the court has different opinions on the judgment of transferred accounts receivable,equity and intellectual property after pledge.The transfer rules of the mortgaged property belonging to the same real right of guarantee are similar to the transfer rules of the hypothecated right.After theoretical and empirical analysis,scholars believe that the transfer of the real property should not be restricted,and the establishment of recovery and effectiveness is the best way to realize the real property mortgage right after the transfer.Although the pledge of right is stipulated in the chapter of pledge of right,the pledge of right with registration as the establishment requirement is highly consistent with the publicity system of real estate and can be dealt with as a whole in terms of transfer rules.At the same time,as the particularity of the circulation mode of the object of pledge right,it will bring some obstacles to the realization of recovery and effectiveness.This paper will discuss the transfer of hypothecated rights through four parts:The first part: introduction of the typical cases of mass transfer of accounts receivable,to show the conflicting interests of the parties,is the supreme law second judgment and the difference between a verdict,and combining the register set nature of equity,the similar intellectual property dispute decision situation,summed up the transfer rights are transferred,the judicial practice on the effect that there is confusion and creditor's rights real right behavior and different connection with the given problem,the root cause lies in transfer rights transfer rules itself exists the legal consequences of unknown,realistic operability,some shortcomings in practice can not reach the purpose of protecting the pledgee.The draft of the real right of the civil code does not change the rules on the transfer of the hypothecated right,but puts forward some Suggestions on the realization of the mortgage right after the free transfer of the mortgaged property.The second part: this part by investigating the protection of the interests of the mortgagee on transfer of the mortgaged property of legislative cases,found on the transfer rules are to distinguish between real property and personal property,according to whether the registration of chattel mortgage and rights pledge to distinguish,affirmed the publicity system and transfer rules,the connection between the proposed rules of transfer of real rights for security in our country should be based on publicity system for typing.To register a qualitative accounts receivable,whether the shares of listed companies must also have a way of the public were analyzed,and concluded that accounts receivable notification and proof of delivery can not reach the effect of the conclusion,because of the particularity of the listed company stock trading,so it is necessary to adjust it to must possess rather than to set up the elements of pledge registration.Based on the theory of concrete analysis of the publicity system of pledge right and the comparison of the publicity system of real estate mortgage,the author thinks that they have the systematic basis of overall analysis.The third part: to review the restrictive transfer rules of the hypothecated right and the mortgaged property,and point out the disadvantages of the restrictive transfer mode from four aspects,such as the protection of the interest of the guarantor and the balance of the interest of the parties.By comparing the realization paths of the mortgage right after the transfer of the mortgage in the legislation of various countries,this paper analyzes the theoretical basis and practical functions of the doctrine of pursuit,the doctrine of subrogation over the mortgage and the doctrine of dualism.It is difficult to overcome the difficulty of transferring part of the hypothecated right after the division of the hypothecated right,so it is suggested that the hypothecated right should be restricted to be transferred as a whole,otherwise it can be deemed as an act sufficient to reduce the value of the guaranteed property.The forth part: from the perspective of protecting the priority of accounts receivable pledgee and safeguarding the right to know about the transfer of equity and intellectual property,this part analyzes the absence of priority rule of right owners under multiple disposal of accounts receivable and the hindrance to the realization of pledge right after the transfer of equity and copyright caused by the change of rights.The priority of the pledgee under multiple disposal of accounts receivable should be determined according to the time of registration of the pledge.The debtor of accounts receivable has no obligation to inquire the registration information of the pledge and can refuse the pledgee's request when the priority of the pledge is uncertain.Changes in equity registration system,the register of shareholders shall be recorded as equity changes take effect change requirements,the industrial and commercial registration as against the elements,on the publicity system of copyright,the transfer of copyright transfer registration model,realize the transfer of copyright registration and the linkage of the pledge registration,perfecting rights pledge to query information,after the transfer of equity and copyright pledge to provide a smooth realization.