Research On The Owner Hypothec

Credit is a prerequisite of the trade, and the hypothec is the king of security. Hypothec is applied to economic trade activity very frequently, and because of the complicated diversification of economic activity, it can often cause owner and mortgagee overlay of identity. Then the owner hypothec that was produced as the special hypothec came into being. By studying the development and the investigation on the system of various countries, foundation ,essence, composing to the owner hypothec as a service, the author makes a comparatively deep argumentation. Through reality of our country, seeing about the legal environment of the owner hypothec, and probe into the feasibility that the owner hypothec should be implemented in our country. Propose the structural design of the system of the owner hypothec being suitable for our country, and take out legislative suggestion finally.There are three parts in this paper.The first part begins with the coming into being and the development of the owner hypothec, Probe into the reason why the owner hypothec was established and developed. And on this basis, through the analyses of essence character of the owner hypothec, the author explains the essences of the owner hypothec.The owner hypothec system came out from the ancient Roman law. Go through the legislative doctrine of the owner hypothec of narrow sense to the legislative doctrine of the owner hypothec of broad sense. In ancient Roman Law, when owner and mortgagee overlay of identity, the owner hypothec was used as an exception system to prevent unfair result from occurring, France is a main representative of legislative doctrine of the owner hypothec of narrow sense, the system was inherited from the ancient Roman law. This type of the owner hypothec was adapted to the economic development at that time. Itsessences belong to hypothec for performing debt. Germany is a main representative of the legislative doctrine of the owner hypothec of broad sense. This type of legislation system was constituted In order to meet the need of the fast development of capitalism society economy. Its essence belongs to hypothec for financing. So Except that the order of hypothec that is the inherent foundation that the owner hypothec based, the fair principle on the civil law and the violent development of social economy is the important reason for its establishment.The owner hypothec system is different in legislation in different country. Defined in essence, the scholars' opinions vary with each other. On the basis of evaluation and analysis of every theory, the writer considers: Determined the essence of the owner hypothec as ownership, can settle the conflict of the owner hypothec with assurance law theory, indeed the civil law theory. First, it as a kind of abnormal ownership right form, its essence of ownership can explain why besides ownership there are other real right exited; second, it as a kind of abnormal ownership can explain the Establishment of the primitive owner hypothec and the owner hypothec without credit. So the owner hypothec is just a kind of abnormal ownership.The second part through the analysis of the current situation of the owner hypothec legislation of our country, Consult the foreign ripe legislative example, Redesigns the owner hypothec system of our country.First, the writer considers our country should admit primitive owner's hypothec. And has pointed out the important document of establishment of the primitive owner hypothec, On the basis of our country's present legislation system and the background of economic development, admit situation when the credit wasn't established, or the owner establishes owner hypothec for himself to establish the primitive owner hypothec, but do not give the hypothec negotiability, do not permit the appearance of hypothec security temporarily. The important documents of establishment of the primitive ownerhypothec have differences, because the reasons of establishments are different. When the credit has not been achieved, its important documents of establishmen...