On The Legal Effect Of A Special Agreement Prohibiting Or Restricting The Transfer Of Mortgaged Propert

The transfer rules of mortgaged property have a long history in civil law,and continue to improve with the development of legal system and economic society.The Civil Code has made great changes to the rules on the transfer of mortgaged property.This rule is worth affirming in protecting the disposal right of the mortgagor and enhance circulation of the property,but the proviso is facing theoretical and practical problems in its application.This paper based on the application in judicature about the Civil Code,combined with the analysis methods of hermeneutics,to seek a system standard for prohibiting or restricting the special contract of mortgaged property transfer to determine the real right effect of mortgaged property transfer,so as to provide a more detailed operability explanation for its application.This paper includes four main parts as below:The first chapter is divided into two parts.The first part expounds the legislative and judicial status of the rules,then the major changes about the rules in the Civil Code and the attached proviso are introduced.Also,the judicial interpretation of guarantee system divided special contracts into registered and unregistered,which can result in different legal effects.Combined with the different identification process and results of the real right effect of Special Agreement in different periods of judicial practice,three problems existing in the application are raised.The second part makes a further analysis of the above three problems by sorting out similar cases,so as to lay foundation for hermeneutic analysis of the Special Agreement.The second chapter is to discuss the first problem above.First of all,the differences such as liquidity,value,and procedure are analyzed between real property and movable property.Also,combined with comparative law and China’s legislation,the application object of article 406 is broad and needs to be further explained.In the second part,application of real property and movable property combined with prohibitive and restrictive treaties is analyzed.For real estate,based on the idea of free circulation of mortgaged property and the balance of interest protection between mortgagee and mortgagor,this paper summarizes some applicable situations and the legal basis for the transformation of legal acts in judicial practice when it should not be applied;For movable property,based on system interpretation,this paper discusses the application of two different restrictions in the field of mortgaged movable property.The third chapter discusses the publicity ability of the Special Agreement,which is a pre response to the second problem mentioned above.The foundation of Article 43 of the guarantee system of the Civil Code is that the Special Agreement has the ability of publicity,but there is controversy in the academic area,and there is no such cases in practice before.The first part starts from the comparative law and similar legal principles such as China’s advance notice Registration System,combined with the establishment of the real estate registration system and the unified system of movable property and right guarantee in practice,to build the theoretical basis of the Special Agreement publicity ability.Then it analyzes the practical necessity of giving registration ability based on protecting mortgagee’s interests and ensuring the transaction security.The second part analyzes the realization path of registration protection from the perspective of giving full play to the maximum effect of Special Agreement.The third part is a futher analysis with hermeneutics of Article 43 of the judicial interpretation of the Civil Code.The last chapter focuses on the third issue,which is the standards in judicial practice.In the first part,the effectiveness of the Special Agreement on the basis of the mortgaged property within the scope of application in the first chapter will be discussed further.The second part analyzes the inconsistency of the application in combination with the relevant cases concluded in 2021 in judicial practice.The key lies in the accurate use of articles 2 and 3 of time effect of the Civil Code.The third part summarizes the exceptions under different application conditions in combination with the exceptions stipulated in Article 43 of guarantee system,as well as Articles 403 and404 of the Civil Code,to apply the Special Agreement more accurately in future judicial practice.