Research On Several Aspects Of Mortgage

Establishment of mortgage in our country is of great significance for protecting the creditor's ligitimate rights and interests, promoting reach of bargain's and safeguarding market credit. However, regulations on mortgage in force have a great deal of unsuitability and imperfections with effect being hindered bringing into full play .For the sake of legislation modification and improvement the thesis is to make some research on several aspects of mortgage.Aspect 1. Nature of MortgageRegarding nature of mortgage, there are several opinions in dispute, which include mainly theories of property right, creditor's right and dual right .1 think each of the above three theories analyses mortgage's legal features only ,failing to reveal its nature.The purpose of mortgage is not to accomplish value in pledge but to obtain and then control security's exchanged value .As far as its nature is concerned, mortgage is not either property right or creditor's right, let alone the simple mixture of property and creditor's rights.When guaranteed creditor's right is overdue, mortgagee can claim for the security by legal means to obtain its exchanged value and to accomplish their own creditor's right without need for mortgagor intervention, so the fundamental pursuit of mortgage is security's exchanged value and the nature of mortgage is right towards exchanged value .Aspect 2. About chattels of Mortgage1. Conflict between defense of registered mortgage and obtaining in good faith.As possession of thing isn't shifted in mortgage ,all the countries' civil and commercial laws vest forceful exclusive effect in registered chattels mortgage, lest mortgagor handle security without authorization to daiiilige mortgagee's rights. Unfortunately regulations on the exclusive effect of registered chattels mortgage in <> have five loopholes .It is my opinion that doctrine of obtaining in good faith should not be applicable if chattels mortgage is registered. Under such circumstances mortgage could claim the return of security and assignee should return it accordingly. My reasons are as the followings: First, alteration of property right would be invalid unless in legal open way .The required way in which chattel mortgage take is not delivery and possession but registration; Second, facing conflict chattel between mortgage and obtaining in good faith, we should certainly protect mortgagee's interests above all as the former is founded on property right law while the latter is aimed to safeguard possession conveyance order; Third, to obtain in good faith must be open ,paid and faultless .Once chattel mortgage is registered legally its openness will stipulate assignee to examine right-burdening conditions of the object to be sold before reaching a bargain .If everyone dealt mortgaged property regardless of existence of mortgage ,the legislation system of mortgage would be worthless.2.Loopholes on the defense effect of registered chattel mortgage.Article 43rd of G.L. has the two following loopholes: First, the range of third party is uncertain ,1 think "third party" here should refer to that in good faith only excluding debtor's common creditors ;Second ,the defense of registered chattels mortgage lacks time and territory limits .It is my legislativeadvice that the registration valid period of chattels mortgage be one year and its territory limit be provincial governing area.Aspect 3. Mortgage TermMortgage term is a valid duration in which mortgage can exercise his mortgage based on parties' arrangements or legal regulations. During the term mortgagee exercises mortgage so that his own creditor's right can be accomplished priorly. With the term expiring, mortgage passes away accordingly . G.L. doesn't stipulate the system of mortgage term.1. Owing to necessities it is an urgent matter for us to institute mortgage term system.2.It is improper to deny mortgage term in excuse of timelessness of the property right.1). Timelessness of ownership doesn't reject dura...