Analysis Of The Rule Of Registration Of Movable Mortgage Against The Buyer

As a product of modern civil law innovation and development of mortgage system,the movable mortgage registration system has the characteristics of not transferring possession to achieve the security function,which can maximize the use of property,improve the efficiency of financing and optimize the business environment.However,since the mortgage of movable property is mobile and not subject to registration,on the one hand,there is a risk of implicit security in the mortgage of movable property,which needs to be restricted in its effectiveness,and on the other hand,the mortgagee of movable property can easily transfer the mortgaged property,which is often difficult for the mortgagee to know,making it more vulnerable to the damage of its rights and interests,so it needs to be adjusted by the rule of registration of the mortgage of movable property against the buyer.The Civil Code,based on the combination of functionalism and formalism,changes the original rules of transferring mortgaged property and allows the mortgagor to transfer the mortgaged property without the consent of the mortgagee,which expands the scope of application of the normal business buyer rule from originally only applicable to movable floating mortgages to nowadays applicable to general movable mortgages,thus affecting the application of the original rule of registration of movable mortgages against buyers.This will afect the application of the original rule of registration of movable mortgage against buyer.Article 54(1)of the Judicial Interpretation of the Security System refines the rule of registration of movable mortgage against buyer on the basis of Article 403 of the Civil Code,but this article is still not enough to completely solve some problems in the application of the law,and there is still a considerable degree of controversy in the composition of the elements,legal consequences and the interface with the rules of normal business buyer.This paper intends to analyze and discuss the above-mentioned issues in order to ensure the practical effect of the system,effectively solve the problem of financing difficulties of small and medium-sized enterprises in China,and promote the benign development of socialist market economy.In terms of the constituent elements,the subjective scope of the buyer is limited to good faith,but the buyer is presumed to be good faith in the procedure.The objective scope of the buyer is limited to the acquisition of ownership,but in the retention-of-title sale,only the buyer is required to acquire possession.In terms of legal consequences,after the bona fide buyer acquires ownership of the mortgaged property,the retroactive effect of the mortgage is blocked,but the mortgagee can still claim subrogation in rem on the transfer price based on Article 406(2)and Article 390 of the Civil Code and thus obtain priority,instead of being reduced to a general creditor,and the procedure for realizing subrogation in rem as stipulated in Article 42 of the Judicial Interpretation of the Security System is possible.The procedure of subrogation in rem under Article 42 of the Judicial Interpretation of the Security System can be improved by drawing reference from the common law standard of "identifiability of pecuniary gain".On the issue of application,the rule of registration of movable mortgage against buyer and the rule of normal business buyer are complementary in application,and only the former can be applied in abnormal business activities,while the buyer in normal business activities can choose to claim in Article 403 and Article 404 of the Civil Code according to its actual needs.