Research On The Mortgage Transfer Syste

Article 406 of the Civil Code stipulates the rules for the free transfer of collateral.From the mortgagor’s perspective,allowing the collateral to be freely transferred is beneficial for maximizing the use of collateral and providing a second financing channel.From the mortgagee’s perspective,recognizing the effectiveness of the right of pledge,and giving the mortgagee the right to request early payment or deposit,has improved the protection of the right of pledge.Moreover,allowing both parties to make arrangements through agreement that conform to their intentions makes the transfer of collateral more flexible.However,the free transfer model is not flawless,issues remaining.Article 43 of the Judicial Interpretation of the Guarantee System ensures that the agreed content can be truly realized by granting the ability to register agreements.However,this may lead to the abuse of the pledgee’s rights,and therefore the circumstances in which the pledgee can claim that the transfer does not result in the alteration of the property right should be restricted.The provision that allows an unregistered agreement to counteract malicious third parties is not conducive to clarifying ownership status and ascertaining the facts of a case.This exceptional provision is unreasonable and should be deleted.In terms of balancing the interests of the various parties in the pledge relationship,the pledgee’s right to request early payment should be considered a substitute right in terms of the price and the object,and should only be claimed when the enforcement of the right is impaired.Since the transfer price is collected by the pledgor,it may be confused with the pledgor’s general property and lose its specificity.Therefore,the object substitution should be further extended to the debt claim of the transferred collateral transfer price.In protecting the interests of the pledgee,attention should also be paid to balancing the interests of the transferee.