Study On The Protection Of The Transferee’s Rights And Interests In The Transfer Of Mortgage In China

With the further improvement of China’s market economy and the increasing demand of market subjects for funds,mortgage guarantee has become the first choice of the way to guarantee creditor’s rights and the "king of guarantee" due to its own advantages.The circulation of collateral involves the legal relationship among the mortgagor,mortgagee and transferee,and also relates to the transaction safety and whether the use value of collateral can be maximized.The legal system of mortgage logistics transfer in China has undergone many legislative changes,from the original completely prohibited mode to the transfer restricted mode in the Property Law to the free transfer mode in the Civil Code.The Civil Code stipulates that the collateral can be transferred from the mainstream.Its legislative purpose is,first of all,to make the best use of everything and play its own role;Secondly,it is necessary to balance the rights and interests of all parties during the transfer of mortgage logistics.Article 406 of the Civil Code stipulates the free circulation of the collateral,allows the parties to agree on the terms prohibiting the circulation,and acknowledges the subrogation of the price and property,but in fact it does not provide for the protection of the rights of the transferee.This article will start from the legal perspective of the transferee of collateral,explore the rules of its rights and interests protection,and build a transferee rights and interests protection system suitable for China’s national conditions,in order to achieve a better balance of the rights and interests between the transferee,the mortgagee and the mortgagor in the circulation process.In addition to the preface and conclusion,this paper is divided into four parts.In the first part,the question is raised.By analyzing the specific judicial cases of the free transfer of collateral rules,the main focus of the case is summarized: 1.Is the collateral transfer agreement effective? 2.When the Mortgagor and the Mortgagee have agreed on a "non assignment" clause in the agreement,can this clause be binding on the transferee? 3.Is the transferee’s expectation of obtaining the collateral finally supported? It is found that there is a problem of insufficient protection of the rights and interests of the transferee in judicial practice,and further questions are raised: how to protect the rights and interests of the transferee of the collateral?The second part analyzes the lack of protection of the transferee’s rights and interests in China’s current mortgage transfer rules.First of all,it elaborates the process of legislative changes of the mortgage transfer rules and the legal provisions for the protection of the transferee’s rights and interests;Secondly,it analyzes the necessity of protecting the rights and interests of the transferee;Thirdly,it studies the application of the law of Article 406 of the Civil Code on the mortgage transfer rules,analyzes the influence of the mortgagee on the transferee from the aspects of the retroactive effect of the mortgage,the subrogation of the price and the property,the prohibition or restriction of the transfer agreement,and concludes the deficiencies of the provisions on the free transfer of collateral on the protection of the transferee.The third part,because the collateral transfer rules do not provide for the protection of the transferee’s rights and interests,the transferee can only protect its own rights and interests according to the third party’s performance system in Article 524 of the Civil Code,analyze the application and limitations of the third party’s performance,compare and analyze the foreign protection of the transferee’s rights and interests in the collateral transfer,and put forward suggestions on how to protect the transferee’s rights and interests.The fourth part,on the basis of the above research,in view of the characteristics of the existing mortgage transfer in China,and then put forward suggestions on the protection of the transferee’s rights and interests in the mortgage transfer,establish a transferee’s rights and interests protection mechanism based on the third-party performance system and the elimination system,supplemented by the subrogation of money and property and the guarantee of defects of rights,and strive to achieve the balance of the rights and interests between the transferee,the mortgagor,and the mortgagee in the mortgage logistics transfer in China..