Research On The Interest Protection Of Mortgagee In The Transfer Of Mortgaged Chattel

Article 406 of the Civil Code changes Article 191 of the Property Law to restrict the transfer of mortgage and allows the mortgagor to freely transfer the mortgage during the mortgage period.Although the relevant provisions of chattel mortgage system are constantly improving,the transfer of chattel mortgage and the transfer of real estate mortgage apply to the same clause,and there is no clear distinction in the system.In the mode of free transfer of mortgage,chattel mortgagee will bear greater risk than real estate mortgagee.Based on the transfer system of mortgage property,this paper studies how to protect the interests of the mortgagee more fully.The first part includes the basic theory of the rules of chattel mortgage property transfer rules and the history of mortgage system and mortgage chattel system.This part also analyzes the system design of protecting the interests of mortgagor,buyer and mortgagee in the transfer rules of mortgaged chattel in the Civil Code.In the second part,through case analysis,it is found that the protection of the interests of the mortgagee in the transfer of mortgaged chattel system mainly has the following problems.First,the characteristics of the mortgageable movable property will make it difficult to realize the mortgage.Secondly,Article 403 and Article 404 of the Civil Code will block the force of recourse.Therefore,compared with the mortgagee of real estate,the "mortgage right of chattel mortgagor is not affected" cannot be realized.Third,Article 406 of the Civil Code has deficiencies in protecting the interests of mortgagees.In view of the above problems,the third part puts forward some suggestions to improve the protection of the mortgagee’s interests in the transfer of mortgaged chattel.First of all,Article 406 paragraph 2 of the Civil Code should be interpreted as the rule of subrogation of gold property and its specific application,so as to reduce the adverse impact on the realization of mortgage due to the characteristics of the mortgaged chattel itself.Secondly,the interests of the mortgagee and the buyer should be balanced to avoid improper blocking of the force of recourse.On the one hand,by strengthening the mortgagor inform obligation to clear the buyer notification obligations can avoid because mortgage movable property is secondary transfer failed to timely change the mortgage registration,registered chattel mortgagee and goodwill between secondary buyer as a result of the registration rights conflicts against the rules.On the other hand,by clarifying the applicable standard of the normal operation buyer rule,we can avoid the abuse of the normal operation buyer rule,which will lead to improper blocking of the force of recourse.Finally,the rights guaranteed by Article 406 of the Civil Code can be realized.We should insist on the position that the agreement to prohibit or restrict the transfer will have a countervative effect after registration.The content of the mortgagor’s notification obligation and the consequences of violating the notification obligation shall be clearly defined.To protect the right to know of the mortgagee,the contents of the obligation of notification and the consequences of breach of the obligation of notification shall be clarified.The application of "possibly damaging mortgage" should be promoted by lowering the standard of proof and classifying the applicable circumstances.