A Research On Transfer Rules Of Chattel Mortgage

The transfer of chattel mortgage relates to the interests of the mortgagee,the mortgagor and the transferee.How to design the system to protect the legitimate rights and interests of all parties and promote the optimal combination of the mortgage use value and the future exchange value has always garnered particular attention.Compared with the Property Law of the People’s Republic of China,substantive modifications have been made by article 406 of Civil Code of the People’s Republic of China,which centers on the transfer rules of chattel mortgage.Supplemented with relevant judicial interpretations,the new rule responds to the judicial differences caused by unclear expressions and vague provisions of the old law.However,the change of legislative context leads to indefinite and unreasonable legal effect of current rules.Therefore,based on the goal of accurate and coordinated application,this paper systematically explains the current rules,and puts forward comprehensive suggestions,in order to promote the full operation of the system function and the settlement of judicial practice differences.The legislative evolution of the rules of chattel mortgage transfer in China twists and turns,the legislative attitude is constantly changing.Behind the fluctuation,it reflects the change of legislators’ understanding of the nature of property rights and the orientation of protecting the interests of the parties.From strict restriction to relative easing,conditional free transfer,and then back to the restrictive position,the will factors of the mortgagee are always been realized.The implementation of Civil Code of the People’s Republic of China marks the establishment of the liberal position of transfer.This change of position and reshaping of rules show the normative intention of the equitable protection of the interests of all parties.The current rules of the transfer of chattel mortgage have given consideration to the disposal authority of the mortgagor,but there still exists disputes on the balance of the demands of the mortgagee and the transferee,which need to be reviewed.Combined with the views of relevant academic views and judicial practice,this paper analyzes three aspects of problems.Firstly,the legal effect of the agreement on prohibiting or restricting the transfer between the mortgagee and the mortgagor remains to be discussed;Secondly,the nature and exercise standard of the mortgagee’s right to "pay off or deposit in advance" of the transfer price still need to be explained;Thirdly,the applicable conditions of tracing effect’s blocking are not clear.In this regard,we should establish the idea of balancing interests and making the best use of properties.On the basis of this,we need to compare the advantages and disadvantages of oversea legislative codes,then provide specific suggestions for the perfection of interpretation of chattel mortgage transfer rules.Firstly,let registration be the key point to distinguish the effect that may act against the extra and particular agreement between the parties.But the registered agreement which prohibits transfer should be invalid because it is contradictory to the original intention of Article 406 of the Civil Code.Secondly,explain the right of "paying off or depositing in advance for the transfer price" as the provision of subrogation of mortgage,and interpret its nature as the pledge of rights in the future.Whether the mortgage is impaired or not should be judged by the obstruction of its realization.Meanwhile,practical application should not be limited to this.The mortgagee is supposed to choose freely between the tracing effect and the right of subrogation on the property.In addition,supplemented by the mortgagor’s mandatory assignment notification obligation,if the mortgagee insists on tracing,then shorten the period benefits according to the mortgagor’s omission.Thirdly,reasonably grasp the applicable conditions that enable the transferee to block up tracing effect and remove the burden of rights on the property.Definitely eliminate the application space of bona fide acquisition in the registration confrontation rules,rationally limit and flexibly deal with the judgment of normal business activities and the paying state of reasonable price in the normal business buyer’s rule.At the same time,make no requirements for a third party’s goodwill.