Study On The Transfer Rules Of The Mortgaged Property

As an important part of the mortgage guarantee system,the mortgage transfer rules can effectively balance the interests of the three parties when the mortgage is transferred is the key to the realization of the value of the mortgage guarantee system.Therefore,so as to make the mortgage guarantee system better serve the social and economic development,the Civil Code abandons the long-standing model of restricting transfer in my country,instead allows the free circulation of the mortgaged property,and clarifies the recovery effect and transfer of the mortgage right.The precondition of the subrogation rule on the price of goods makes the mortgage right have the dual protection of the retrospective effect and the subrogation system on the transfer of the price of goods.Compared with the previous legislation,the "Civil Code" can be said to be a major improvement in the standardized path for the transfer of collateral.However,it should be noted that although the provisions of the new law return to the jurisprudence of the traditional civil law system and meet the needs of economic development,the scope of application of each article of law,the co-opetitive relationship between them,and the legal effects of the specific rules still need to be clarified.Some supporting systems have yet to be perfected.Therefore,it is very urgent to study the interpretation theory of the mortgage transfer rules of "Civil Code".However,so as to find the best choice of interpretation theory,it is necessary to consider and summarize the legislative changes under our country’s unique national conditions and the advanced experience of foreign legislation.Based on this,this article is divided into three parts by means of comparative interpretation,historical interpretation and value analysis.The first part analyzes the specific content,legislative reasons and applicable dilemmas of the mortgage transfer rules in my country through sorting out the legislative changes of the mortgage transfer rules in our country,in order to summarize the pros and cons and help the interpretation of the new law.The second part compares and draws lessons from the methods of balancing the tripartite relationship between the extraterritorial legislation of the free transfer model and the problems that may arise in the free circulation of mortgages,and then discusses the relevant experience of extraterritorial legislation in the protection of the interests of the mortgagee and the assignee.General situation and reflection for reference in the interpretation of the new law;the third part,based on the lessons learned from the first two parts of the article,takes the rules on the transfer of real estate and movable property mortgages as the starting point,and distinguishes the real estate mortgages in the Civil Code The respective scope of application of the movable property collateral when it is transferred.Then it analyzes the legal effect and specific application of the special agreement to restrict transfer in paragraph 1 of Article 406 of the Civil Code and the rule of "subrogation on the transfer price" in paragraph 2.Finally,it sorts out the assignee’s remedies in the Civil Code,and offer the proposal for improving the assignee’s remedies to better balance the interests of the three parties.