Discussion On Protection For Mortgagee’s Interest In The Transfer Of Mortgaged Property

The "Civil Code of the People’s Republic of China" came into effect on January 1,2021.Article 406 of the "Civil Code of the People’s Republic of China" made major changes to the mortgage transfer rules.The legislation established the concept of open and free transfer of mortgages,and reconstructed the mortgage transfer rules.System,mortgage transfer no longer requires the consent of the mortgagee.This modification responds to the academic community’s long-standing desire to release the rules of free transfer of collateral.At the same time,opening the free transfer of collateral can give full play to the utility of the property,promote the best use of the property,and improve the efficiency of the use of the property and the convenience of the transaction.Avoid improperly increasing collateral transaction costs.But while affirming this change,we should also pay attention to the problems that this change will cause.For the mortgagee,although the right of recourse is granted to the mortgagee,it may be difficult for him to recover the registered immovable property,and the unregistered movable property encounters obstacles to the realization of the mortgage right.At the same time,the provisions of Articles 403 and 404 on the validity of the transfer of movable property mortgages overlap in application,which leads to difficulties in their application and understanding.The transfer of the mortgaged property involves the interests of the three parties: the mortgagee,the mortgagor and the mortgagee transferee.The opening of the free transfer may increase certain difficulties for the mortgagee to realize the mortgage,and even make his rights fail,resulting in his legal rights and interests being affected.damage.Based on the basic background of seeking the balance of interests of the mortgagee,the mortgagor and the assignee,this thesis attempts to find a method to protect the interests of the mortgagee on this basis.prevent their interests from being harmed.The innovation of this thesis is that it takes the protection of the interests of the mortgagee as the starting point,fully discusses the problems existing in the system of mortgage transfer rules in the era of the new Civil Code,sorts out the problems and deficiencies in the new law,and finally proposes the transfer of the mortgage.The solution to protect the interests of the mortgagee,trying to make our country’s mortgage transfer system more perfect through this discussion.The main body of this thesis is divided into five parts.The first part expounds the legislative changes of my country’s mortgage system and the changes in the "Civil Code" to the mortgage transfer system.And analyze the advantages and disadvantages of the new regulations.The second part expounds the impact of the free transfer of the mortgage on the mortgagee,and analyzes from the two aspects of the real estate mortgage and the transfer of the movable mortgage.Risks such as difficulty in recovering the mortgaged property;when the mortgaged property is transferred as a movable property,the mortgagee will lose the mortgage right under certain circumstances due to the existence of Articles 403 and 404 of the Civil Code,and at the same time,the mortgage right can be opposed to the transferee.In the case of a person,there is a possibility that the mortgaged property is difficult to trace and its whereabouts are unknown,so that it is impossible to realize the mortgage right,resulting in damage to the interests of the mortgagee.The third part expounds the institutional rules in Article 406 of the Civil Code regarding the prohibition or restriction of assignment between the parties,and analyzes the rationality and inadequacy of this provision.The establishment of a special agreement to prohibit or restrict assignment can reduce the number of mortgagee Due to the risks brought about by the transfer of the mortgage,but at the same time because the Civil Code does not provide for the nature of such an agreement,there is still room for improvement in terms of whether it can be registered with the mortgage information and the validity of the agreement.The fourth part expounds the rights of the mortgagee during the mortgage period.Including the right to know and the right of preservation owned by the mortgagee.However,in the actual exercise process,the mortgagor’s right to know depends on the mortgagor’s notification,and the preservation right is not clear enough in the "Civil Code" to "may damage the mortgage right",which may lead to the mortgagor’s interests being affected in the actual behavior process.damage.The fifth part expounds the improvement and solution measures proposed for the possible damage to the mortgagee under the background of the reshaping of the mortgage transfer rules,including the provisions on distinguishing movable and immovable mortgages,improving the "prohibition of transfer" special agreement registration system,Improve the standard of proof that the mortgagor damages the mortgage right,and establish and improve the mortgage registration system.