Research On German Verkehrsgrundpfandrecht

?.Topic Value,Research Direction and MethodIn German Law,on the basis of formalism and land registration and abstract structural technology,verkehrsgrundpfandrecht system is a private law system that enables security interest in real property to separately exist without causal obligatory relation and integrates with securities to achieve a safe and high efficient security interest negotiation.In the19^th century,with the institutional credit models such as landschaft and hypothekenbanken taking the dominate position in credit activity,verkehrsgrundpfandrecht system in line with hypothekenpfandbrief system realized the mass securitization negotiation of real property value and eventually formed Germanic model of assets securitization guaranteed by real property.The Germanic model and the American model—mortgage-backed security developed in America in seventieth of the 20th century—are now the main models of real property securitization.This paper is developed on one focus—how can Germanic verkehrsgrundpfandrecht survive—which includes two aspects,that is,how can Germanic verkehrsgrundpfandrecht survive historically and logically? To the former:this paper will demonstrate the historical reasons of the emergence of the system by revealing the specific historical environment that verkehrsgrundpfandrecht emerged and exploring the structural interaction between relevant political,social and economic factors and the changes of the legal system;as to the latter,this paper will explain the structure of verkehrsgrundpfandrecht system and the logical connection with neighbor legal system and territorial legal unit,then highlight the unique structure of this system.However,the two aspects are made only for cognitive need.As a matter of fact, logical aspect and historical aspect which seem to be a double-helix structure can not be separated definitely;on the contrary,they depend on each other and twist around each other.On the one hand,systematic logic venation and life course need to be found in the trace of history;on the other hand,the interaction between law and political,social and economic factors in history will be implemented into the structure of the system itself.The core of the double-helix structure is formalism principle. The abstract principle and publicity principle on which verkehrsgrundpfandrecht is based can only be acquainted under the concept of formalism.In history,the changes of relationship between formalism principle and freedom of contract or theory of will directly influence the construction of verkehrsgrundpfandrecht.Instead,whether the argument is about verkehrsgrundpfandrecht,or about abstract principle or publicity principle,finally it may more or less result in or involve argument over the relationship between formalism and theory of will.Therefore,the relationship between formalism and freedom of will is the line that connects the historical development with logic constitution of verkehrsgrundpfandrecht in different historical periods.In accordance with the aforesaid writing thoughts,this paper primarily adopts logic analysis and historical and philosophical research method,in the meanwhile makes reference to research findings of various disciplines such as etymology, religious study,sociology and economics,with the expectation of disclosing the historical and logical visage as completely as possible.?.Innovation of TheoryThe main theory innovation here includes the following aspects:(1) novelty of topic. This paper is the first one to do a systematic research in China on Germanic verkehrsgrundpfandrecht system and discloses comparatively complete historical development and logical visage hereof;(2)This paper analysis from the legal standpoint the one of the two main models of real property securitization—German model.And it is another choose for chinese securitization.(3) novelty of position.In German,main stream generally consider renten system of medieval law as the origin of verkehrsgrundpfandrecht. Nevertheless,the present endeavor formulates that the unique sachhaftung concept of ancient Germanic law—the primitive concept of separate security interest in real propertyis the true headstream of Verkehrsgrundpfandrecht system;(4) novelty of method.The present endeavor interprets the reasons and influences of the peculiar phenomenon,that is,the separation of duties and obligations in Germanic law.In the meantime,this paper,employing total history study method of Annales School,places verkehrsgrundpfandrecht system into the background of the entire history development and profiles the structural interaction between the system and the specific social environment of different historical periods,widening the horizon of research of legal system history;(5) renewal of the understanding of abstract contract theory.Through historical textual research and logical system analysis,this paper formulates that nichtakessorietat belongs to abstract principle and clarifies academia's misunderstanding of abstract principle. ?.AbstractThis paper consists of six chapters except introduction.Chapter One primarily traces the development of verkehrsgrundpfandrech prior to modern times.The system has a direct recourse relationship with Germanic law.Filled with animistic atmosphere,legal thinking of ancient Teuton considered that everything in the world was spiritual and might bear some legal relationship just like human beings,which might be established by a nominal procedure between human beings and things.Pledge on immovable of ancient Germanic law was deemed as an absolute sachlast without direct connection with specific obligatory right.And the plain concept of abstract real property had a direct impact upon the development of security interest in real property of the Middle Age.In the Middle Age,all feudal burdens affixed on land especially money rent and real property renten were deemed as separate debt assumed by the land itself,as a result land was anthropomorphized and dominated.Therefore,renten obligee's realization of right was only depended on the guarantee of the land itself while they could not claim for individual liability toward land owner or land possessor,for they were just agents.For the purpose of circumventing usury injunction of Christianity in the Middle Age,people achieved capital financing by means of legitimate renten purchase and sales,which enabled renten purchase and sales to be an excellent method of investment and land value realized in zigzag way.Chapter Two mainly introduces the changes of verkehrsgrundpfandrech in Modern law. In the activity of Modern Roman law succession,although guarantee system of real property in inherent law of Germany suffered strong concussion from mortgage system of Roman law, it survived in north Germany,absorbed reasonable parts of mortgage system of Roman law and took a transforming and creative way.In the 19th century,German scholar B(a|¨)hr developed real right contract advanced by Savigny to security interest in real property field, formed a complete abstract security interest system and acquired its integral law form in the mortgage legislation of north German Confederations—Mecklenburg and Prussia.In the process of formulation of German Civil Code,legislators considering the different security customs of Germany established security interest in real property system,centered by verkehrshypothek and supported by secured mortgage right and grundschuld.Chapter Three introduces the theoretical basis of verkehrsgrundpfandrecht upon history. In a broad sense,verkehrsgrundpfandrecht is an integral part of the historical phenomenon—dynamic or circulation of real property right.The object is to enable security interest in real property to circulate as a sheer right of value,the attainment of which depends on whether or not security interest in real property can get rid of the threat from individuation credit relation to circulation of real property right.By means of formal technology (registration),legislator shielded all the basic legal relationship of obligatory right from the existence of real property,which was impersonate and unable to technically publicize,making security interest an abstract formal right.Further,laws granted credit on the abstract right disclosed on the register so that all people might obtain the protection of laws where they did transaction with a good reliance on the content disclosed.The formalized abstract structural technology obstructed the direct influence of causal relation of obligatory right on security interest,which made obligatory right only take effect as a regulation means by virtue of undue enrichment system,and achieved dynamic balance between property circulation in form and good faith protection.Finally,verkehrsgrundpfandrecht resorting to combination of securities, realized securitization,made negotiation by personal property possible and overcame the inconveniency and inefficiency of negotiation by register.Chapter Four analyzes verkehrshypothek—the model of verkehrsgrundpfandrecht.In German Civil Code,verkehrshypothek,which embodied the legislator's efforts to combine mortgage system of Roman law with traditional German guarantee system of real property, was not only provided as the model of verkehrsgrundpfandrecht,but also provided as the model of the whole security system of real property.It upheld die akessorietat principle of Roman mortgage and reached the unification of concept system.At the same time,it limitedly expanded public summons and public trust system to guaranteed obligatory right and resolved safety problem in negotiation of mortgage right.However,it did not achieve a full success,for it excessively considered the local diversities a lot but did not contemplate the development trend of modern credit and the difficulty to make mortgage right securities circulate like stock securities under the requisite of not demolishing the essential feature of mortgage right—die akessorietat.Therefore,the model position of verkehrshypothek in practice would be surpassed definitely by grundschuld which was more abstract and flexible.Chapter Five mainly deals with the grundschuld system and the reasons why it substitutes verkehrshypothek model in practice.Grundschuld,historically a separate real property on land in an abstract form,directly originated from renten system in the Middle Age. In German Civil Code,grundschuld,whose historical features were preserved,was shaped as a separate real property not based on specific causal relationship.Even used to guarantee specific obligatory right relationship,the latter could only be a kind of regulating legal factor, operating by virtue of obligation law.Thus,where obligation was guaranteed by grundschuld, the displacement of the object of guaranty produced high flexibility.The feature was a great attraction to capital market,which was the reason why grundschuld supplanted other guaranty forms such as mortgage right at maximum amount in credit practice,substituted verkehrshypothek model and changed into the most typical model of verkehrsgrundpfandrecht system.Chapter Six discusses the development of verkehrsgrundpfandrecht and guarantee system of real property of China.Historically,Chinese civil law once met Verkehrsgrundpfandrecht by chance while they went on separately.In the reformation of legal system at the end of Qing dynasty,grundschuld was provided in the Draft of Qing Dynasty's Civil Law.While legislators of republic of China abolished grundschuld and strictly persisted in the absolute dominate position of sicherungshypothek for the reason of lacking such practice in Chinese tradition and being inconsistent with national condition.Until now,the Chinese civil law legislation still follows this tradition.Nevertheless,the insufficient negotiation of current guarantee system of real property of China is extremely evident.In practice,American mortgage-backed security is applied to solve insufficient negotiation problem.After comparing the Germanic and American negotiation models of security interest of real property,this paper observes that no matter which model is referred to,the legislation of Chinese security interest shall deepen and specify the basic civil relationship of security interest of real property negotiation to prevent and supervise the potential risks from the headstream.Considering historical resources and systematic rationality,China shall reform her guarantee system of real property system by taking advantage of Germanic verkehrsgrundp fandrecht.