Study On The Transfer Of Collateral

China ’s dispute over the provisions of Article 191 of the “Property Law” has a long history,and its main flaws are reflected in the provisions on the “restriction on the transfer of collateral” and the “right of removal”,but the Civil Code(Draft)has not completely resolved Two questions.The first part of this article mainly introduces the evolution of our country ’s legal regulations on the transfer of collateral,and adopts three relevant legal regulations on China,namely Article 49 of the Guarantee Law,Article 67 of the Interpretation of the Guarantee Law and Article 191 of the Property Law Waiting for the transfer of collateral,analysis and sorting out,summed up the shortcomings of the "Property Law" to restrict the transfer of collateral,and then came to the two main problems of Article 191,namely "restriction on transfer of collateral"and "right to remove The system design is unreasonable ",and take the above two questions as two main clues to expand the second and third parts of this article.The second part focuses on the discussion on whether "collateral should be freely transferred".This article first puts forward the three aspects of Article 191’s"Restrictions on the Transfer of Mortgage" provisions in the context of extraterritorial legislation: "violation of the basic spirit of the Property Rights Law","failure to truly protect the interests of the mortgagee" and "not conducive to the full realization of the mortgage Market value ”,and then pointed out that although the“ Civil Code(Draft)”changed the“ Restricted Transfer ”provisions of the“ Property Law ”,there were also new clauses“ If the parties otherwise agreed,in accordance with their agreement ”,this is the mortgagee ’s The superior contracting status and the possibility of imposing unfair format clauses on the mortgagor restrict the transfer,so the author proposes a solution to delete this new provision to avoid the possibility of restricting the transfer of the collateral and explicitly granting the mortgagor the right to freely transfer.The third part of this article mainly includes four aspects.Firstly,it pointed out that our country ’s legislation has not been able to completely solve the problem of the right of extermination.Secondly,it pointed out that China ’s “Civil Code(Draft)” has omitted the “rights of extermination”,and once again introduced the right of extermination in Germany,France,Japan,Italy,and Taiwan The legislative experience of the issue finally put forward that the system of extermination rights should be designed in our civil code,and proposed that the transferee has the right to request the mortgagee to remove the mortgage value from the mortgagee.Exclusive design schemes such as “the mortgagee ’s obligation to notify the transferee before applying for auction” and “the transferee ’s and the mortgagee ’s respective exercise period”.