Chattel Mortgage Legal System

The system of chattle mortgage comes of Roman law, the latter-day civil law of civil law system didn't accept this system in code for it is short of appropriate Ways of publication. With the development of modern economy, the category and amount of chattle is increasing day by day. The small and medium enterprises demand using the chattle to get financing more and more strongly, which draw more and more attention to the system. The system of chattle mortgage with the character of no-occupation was accepted by many states in law or test cases after 20th century, proving the system was developed again. Our state has established the system of chattle mortgage since the 1995 when the Mortgage Law is enacted. The Interpretation of Mortgage Law made by the Supreme People's Court and the Real Right Law approved by the National People's Congress of china had made some perfection to the system. But there are many problems in the system, which has influenced the application of the system in practice.This article want make a systemic comprehensive research in order to amend the system based on analyzing the stipulation of our laws related. Except introduction and conclusion parts, this article can be divided into eight chapters totaled one hundred and fifty thousand words.The paper can be divided into three parts.The first part is the research of basic theory of the system, including chapter one and chapter two.Chapter one, the conspectus of the system, mainly explains the basic theory of it. Firstly the paper make a profound analyzing of the concept, indicating the essential character different from other security interest, which is the logical foundation of the research. Secondly, the essay hold the opinion our state should amend the system but not giving up it after comparing the system with the resembling system such as floating chattle mortgage and guaranty alienation. Finally it explains the social value and function of the system, which are promoting the economic development, bringing into play the utilities of the res, decreasing financial risk and adding financing surety measures. Chapter two, the inspection of the comparative law, mainly investigates the chattle mortgage system without occupation between civil law system and common law system. At first, the paper make a survey of the modern evolvement of the chattle mortgage in civil law states such as France, Germany, Japan and Taiwan district etc. after investigating the Roman law and the Teutonic law which is the origin of the chattle mortgage system. It is found that although the system in civil law system is not so developed compared with common law system, the civil law system make a full use of no-occupation chattle mortgage through the system such as guaranty alienation and retention of title, which assist system of chattle mortgage. We found the chattle mortgage system is more developed than it in civil law system because there are not rigorous theory of publication after exploring the system in England and America. At last we can draw two apocalypses after comparing the chattle mortgage in different law system. One is the chattle mortgage is the result of expansion of the superiority in real property mortgage to chattle right, a reflection in law required by economic development. Another it is difficult to absorb the system to the traditional civil law. it is necessary to perfect the chattle system in order to bringing the system into traditional civil law without confliction.The second part is the research of Substantive Law on the system, including four chapters.Chapter three, acquisition and publication of chattle mortgage, mainly discusses the problem in acquiring and publication of chattle mortgage. Above all, it analyzes the ways to acquire chattle mortgage, specially indicating that chattle mortgage should be applicable of the principle of acquisition in good faith. Nextly, the paper explores the content, form and effect of the chattle mortgage contract. In the next place it discusses the extension that can be set up chattle mortgage right, draw an conclusion that it is all chattle not prohibited by law. Then the paper compares the different ways of publication to chattle mortgage, hold the opinion that it is right to adopt the doctrine of registration setting-up against others in our law. Eventually the article explores the confliction brought by chattle mortgage registration and puts forword the anti-measures.Chapter four, the effect of chattle mortgage, mainly investigates the effect rules of chattle mortgage. Firstly, the paper analyzes the character the scope of the third person and subjective judgment about the unregistered chattle mortgage. Next, it investigates the the resistance effect and public trust on registered chattle mortgage. Finally, it investigates the concurrence between the chattle mortgage right and other guarantee rights, and explains the reasonable rules to decide the discharge sequence between security interests.Chapter five the scope of chattle mortgage validity, mianly investigates the scope of creditor's rights and the scope of guaranty. Firstly, the essay explains the scope of creditor's rights in chatlle mortgage, which should make a balance between the mortgagee, the mortgagor and other creditor's rights related with the mortgor. Next,it investigates the scope of guaranty. The scope of guaranty not only influences the in interest of the mortgagee, but also the interest of other creditor's rights, so the law should give a explicit scope of guaranty.Chapter six, the implement of chattle mortgage, mainly investigates the procedure and manner of implement of chattle mortgage.It is the uppermost effect in chattle mortgage rights, also the uppermost right for the mortgagee.It is the key point to develop the system. To establish a high efficient and cheap implement procedure is an important question in the system. There are many problems in the implement procedure in our country need to perfect. This chapter puts forward some anti-measures to perfect our implement procedure.The third parts is the research on procedure of registration, including the chapter seven and the chapter eight, which makes an deep survey on the problem in our procedure of registration and put forward some suggestion to perfect he procedure.Charter seven, the conspectus of the chattle mortgage registration, mainly explains the basic theory about chattle mortgage registration. Firstly, the essay investigates the concept, the character and the function of the chattle mortgage registration. Next,the essay puts forward some suggestion to legislation on the selecting and construction of chattle mortgage system, explaining the mistakes in registration and the liability.Chapter eight, the procedure of the chattle mortgage registration, makes an analyse of the procedure, putting forward some advice to perfect it. Firstly, the essay explains the right of application and the territorial jurisdiction, holding the opinion our law should prescribe enrolling claim right. Next, the paper investigates the manner of checkup of the chattle mortgage registration, thinking it is reasonable to take the formal examination in our law. Thirdly, the paper investigates the content of registration, too simple or too complexity is not appropriate. Finally the paper puts forward some suggestion to perfect the registration procedure, such as adding the correction system of registration and challenge system of registration etc..