On Several Issues Concerning The System Of Maximum Mortgage In China

This thesis analyzed several issues concerning the legislation and understanding of the system of maximum mortgage in China, aiming at providing suggestions for the perfection of the legislation of the maximum mortgage in our legal framework. Comparative study on the system of maximum mortgage was employed. Related theories and legislative rules about the maximum mortgage in foreign countries were compared with those in China. And two expert drafts on related rules were also compared. After analyzing failure and success in the implement of related system, some misunderstandings were clarified, so as to provide some approaches for the perfection of the system of maximum mortgage in China's legal framework.Apart from the foreword and conclusion, the whole thesis consists of seven chapters. Chapter 1 evaluated the definition of the maximum mortgage and three factors contained therein, namely uncertain creditor's right, maximum amount and special mortgage. The legislative insufficiency in definition of maximum mortgage in China was also analyzed. Chapter 2 expounded the theories on the system of maximum mortgage. Based on the theory on the mortgage in French, namely the theory on collateral nature and certainty of the mortgage, the system of maximum mortgage was evolved into two schools, namely the German Mode and the Japan Mode. China learnt from the Japan Mode, however there exist some defects in the legislation concerning the system of maximum mortgage in China. In this thesis, the author held that legal characteristics of the maximum mortgage were embodied by the alleviation of the formation, transfer and extinguishments in the collateral nature of maximum mortgage and by the uncertain creditor's right and the preset maximum amount in the certainty nature of the maximum mortgage.Chapter 3 analyzed some existing problems in the provisions concerning maximum mortgage in China. In our legislation, there are no provisions on the ceiling amount in the agreement of maximum mortgage and no provisions on the period for the determination of the guaranteed creditor's right. Formation against registration was not uniformly employed in the registration of the maximum mortgage. In respect of the range of the categories of the maximum mortgage, strict limitationism rather than general limitationism was applied. No provisions on the amount preferentially paid in respect of the guaranteed creditor's right. The setting of maximum mortgage on the uncertain property corporate entity was proposed.Chapter 4 discussed the rules for the alteration and disposal of maximum mortgage. Some defects in the legislation on related rules were analyzed.Chapter 5 and chapter 6 described and analyzed the system for the ascertainment of the maximum mortgage and the equity system on the maximum mortgage, as well as some insufficiencies in legislation.Chapter 7 analyzed the causes of formation of the existing stipulations in our legal framework, namely, no adequate preparation in legislative theory, the legislative guidelines of generality superior to elaboration, and no sufficient borrowing from legal systems of other countries.In conclusion, some suggestions for the perfection of the system of maximum mortgage in our legal framework were given. Firstly, perfecting the legislative definition of the maximum mortgage. The author held that the maximum mortgage is a kind of special mortgage guaranteed by pawn aiming at uncertain amount of creditor's right. Secondly, further implementing the alleviation theory on the collateral nature of the maximum mortgage and revising Article 61 of the Guarantee Law of China. Thirdly, perfecting the system for the setting of the maximum mortgage: (a) in respect of mortgage agreement, the maximum limitation amount should be provided as the compulsory issue, the closing period of the guaranteed creditor's right should be the agreeable clause, and there should be limitations on the freedom of the parties when determining the closing period. (b) As for registration, the system of for...