Doctrinal Analysis Of The Rules On Transfer Of Mortgage In The Civil Cod

As for the transfer of mortgaged property by the mortgagor during the period of mortgage,the relevant rules have changed many times in the history of our country.There are repeated changes between the legislation of restricted transfer and the legislation of free transfer.The birth of Article 406 of the Civil Code completely changed the restrictive transfer doctrine adopted in Article 191 of the Property Law,returned to the free transfer doctrine and recognized the retroactivity of mortgage right.This clause will play a very important guiding significance to the transfer of mortgaged property.However,at present,the new legislation is not clear,and there is no perfect supporting measures,so it is necessary to make a thorough interpretation of this article.The first chapter reveals the problems behind the rules of mortgage transfer in China from three different perspectives.First of all,from the perspective of legal theory and legal policy foundation behind the rules of mortgage transfer,the paper reveals the changes of value orientation and abstract idea behind the rules of mortgage transfer.Secondly,it clarifies the rules of mortgage transfer in Chinese history from the legislative level,sorts out the evolution and changes of mortgage rules,and points out the conflicts among norms.Finally,the paper collects cases about the transfer of mortgage from the practical level and sorts out the judicial thinking,so as to expose the drawback of inconsistent judicial thinking caused by the ambiguity and frequent changes.The second chapter mainly explains the path formation and related elements of mortgaged property transferring freely.First,discuss from three aspects: the free transfer of mortgage and the retroactivity of mortgage right and exclusive exclusion of transfer of rights.Second,it analyzes the obligation of notice of the mortgagor in the case of the transfer of mortgaged property,and mainly identifies the legal effect of the violation of the obligation of notice.Finally,paragraph 2 of Article 406 of the Civil Code stipulates that when the mortgagor transfers the mortgage,the mortgagee has the right to claim against the mortgagor.But there is no clear legislation on what may damage mortgage right.This part mainly analyzes the nature of the claim and discusses the possible damage to mortgage.The third chapter is to distinguish chattel and immovable property and analyze the situation of blocking the retroactivity of mortgage right.In the case that the mortgaged property is chattel,the right of retroactivity of mortgage right cannot oppose the buyer in normal business activities;if the chattel mortgage is not registered,it cannot be used against the bona fide assignee.In the case that the mortgaged property is immovable property,the expectation right of immovable property consumer is superior to the recovery right of mortgagee.In addition,if the effectiveness of the principal creditor’s right is diminished due to the expiration of the exercise period,the retroactivity of mortgage right will also be diminished,and the mortgagor can claim the right of defense,and the retroactivity of mortgage right effect will be blocked.The fourth chapter mainly analyzes the remedies of the buyer and the mortgagee under the standard of free transfer of mortgaged property.If the buyer is pursued,it can fight against the mortgagor by article 614 of civil Code and article 582 to 584 of analogical application.It may also claim against the mortgagee the right to discharge debts in accordance with the third party performance rule in paragraph 1 of Article 524.If the recovery effect is blocked,the mortgagee may claim the full power of special security of mortgage right or claim liability for breach of contract against the mortgagor.Chapter five is the main conclusion of this paper.