Research On The Rules Of Mortgage Transfer In The PRC Civil Code

China’s provisions on the transfer of collateral are involved in the security law,its judicial interpretation,the property law and other laws.It was not until the civil code that it fully affirmed the free transfer of collateral and established the recourse effect of mortgage.However,the law also supports the parties to exclude the free transfer of collateral through special agreement,and the legal effect of special agreement needs to be determined in combination with relevant judicial interpretations.The Civil Code stipulates that the mortgagor shall perform the obligation of notification when transferring the mortgaged property,and the mortgagee has the right to exercise the right of subrogation on the mortgaged property on the premise of proving that the transfer of the mortgaged property may damage the mortgage right.At present,the specific requirements of the mortgagor’s notification obligation and the premise of the mortgagee’s exercise of the right of subrogation on the property are not clearly defined.The author will analyze and put forward his own opinions according to the provisions of the civil code and relevant judicial interpretations.The retroactive effect of mortgage conforms to the dominant and exclusive characteristics of real right,and returns to the essence of real right for security.Today,with the rapid development of socialist market economy,it is of great practical necessity to affirm the free transfer of collateral and recognize the recovery effect of mortgage right,which is conducive to activating assets,enhancing the mortgagor’s solvency and promoting market transaction and circulation.However,there are also some obstacles to the recovery of the mortgage,such as the bona fide third party system,the buyer’s rule of normal operation,the super priority system,etc.these obstacles will have a direct impact on the recovery of the mortgage.In order to avoid the weakening of the mortgage,the obstacles should set strict applicable elements.This paper has four chapters.The first chapter is about the research background,research status and research methods at home and abroad.The second chapter introduces the legislative evolution of mortgage transfer rules in China and the value and significance of mortgage transfer rules in the civil code.The third chapter mainly discusses the mortgagor’s obligation of notice and the exceptions to the free transfer of collateral.The specific requirements of the mortgagor’s notification obligation are not clearly stipulated in the current law.The author will analyze it from three aspects: the time point,method and content of the notification.The mortgagor’s notification obligation is not a mandatory provision of effectiveness.The parties may agree on the specific requirements of the notification obligation and the legal consequences of the mortgagor’s breach of the notification obligation in advance."Agreement of the parties" can exclude the free transfer of the mortgaged property.Whether the agreement is registered or not will lead to different effects of the transfer of the mortgaged property.The mortgagee may make an agreement on the prohibition of transfer and register in advance,and set the liability for breach of contract to limit the mortgagor’s "risky" transfer.The fourth chapter mainly discusses the subrogation and recourse of the mortgagee.The premise for the mortgagee to exercise the right of subrogation on the property,that is,the proof standard of "proving that the transfer of the mortgaged property may damage the mortgage",is not clear and needs to be improved.Whether the mortgagee’s exercise of the right of subrogation on the property leads to the elimination of the mortgage also needs to be analyzed in combination with relevant provisions.The pursuit of mortgage needs to meet certain conditions,and there are also some reasons for obstruction.At present,the applicable conditions of these reasons are not perfect.The author will discuss and analyze them respectively and put forward his own suggestions.