Research On The Transfer Of Collateral In Chattel Mortgage

China’s property law and judicial interpretation of guarantee system of civil code adopt the mode of restricting the transfer of collateral.The transfer of chattel mortgage may be the result of the mortgagor’s malicious transfer,or the autonomy of the mortgagor and the transferee,In addition,the ownership of chattel changes due to delivery,Compared with free transfer and allowing recourse,restricting transfer mode can not provide additional protection for the interests of the mortgagee.Article 406 of the civil code of China doesn’t distinguish between chattel mortgage and real estate mortgage,so article 406 of the civil code can be applied to chattel mortgage transfer.The mortgage on chattels has been perfection,a chattel mortgage has tracing effect,it can trace and realize it when the collateral is transferred.When the chattel mortgage has been perfection and known to the third party,there is no problem that the tracing effect can strike the assignee,and the rational assignee can realize self-protection.The tracing effect does not exclude the mortgagor or the assignee from paying off debts in advance.The essence of the competition between the the mode of encumbrance and the mode of restricted transfer or the mode of subrogation on the transfer price is the term interest of debt performance.Under the mode of restricted transfer or the mode of subrogation on the transfer price,the debtor’s term interest is deprived,and the debtor can only choose to pay off in advance.However,the model of encumbrance recognizes the debtor’s term interests and allows the mortgagor and the assignee to have autonomy of will,which is more advantageous than the model of subrogation.The conflict of dual publicity caused by the registration system of chattel mortgage leads to the tension between the protection of the interests of the assignee and the mortgagee in the transfer of chattel mortgage.In order to ensure the effectiveness of the mortgage,we should recognize the inquiry obligation of the assignee.The first level of the protection of the interests of the transferee is to exempt the buyer from the inquiry obligation through the buyer rule in normal business.The second level is to strengthen the publicity effect of chattel mortgage and let the assignee know the existence of mortgage burden.The third party level of the protection of the assignee’s interests is to provide institutional support for the self-protection of the assignee.From the perspective of the protection of the interests of the transferee,it should be considered that even if the registered prohibition of transfer agreement has the effect of negating the change of real right,it is only that the change of real right is not effective relative to the mortgagee.In the process of chattel mortgage transfer,it may be difficult to trace and protect the interests of the mortgagee.Therefore,different types of chattel should be distinguished.It is not suitable to set fixed charge on inventory.If floating charge is set on inventory separately,accounts receivable should be pledged at the same time.in order to prevent the mortgagor and the assignee from transferring the mortgaged property without notice to the mortgagee,it is difficult to trace.In terms of interpretation,it is a feasible way to protect the interests of the mortgagee to protect and promote the performance of the obligation of notification through the liability for damages in violation of the obligation of notification or the deprivation of the mortgagor’s term interests after the violation of the obligation of notification.At the same time,it should be considered that not only the mortgagor has the obligation of notice,but also the informed assignee has the obligation of notice.The tracing effect of unperfection chattel mortgage is blocked to a great extent,and the unperfection chattel mortgagee can protect his rights and interests according to the second paragraph of article 406 of the civil code。...