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Study On The Value Orientation Of Legislation On Real Rights For Security

Posted on:2005-04-05Degree:MasterType:Thesis
Country:ChinaCandidate:R Q MeiFull Text:PDF
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Real rights for security, from the view of its own history of development, is related with and designed for the need of social economic development. With the development of present social economy, how to establish and improve system of real right of pledge of our country is an important subject that we can't avoid. The value orientation of it is the most important thing among them.Some scholars in our country think that Dependency theory of Real rights for security has been already unable to satisfy social economy development' demand for trade safe. And they think Dependency theory of Real rights for security only has guarantee function and has not investing function which is very important to the modern social economic rapid development. So, through investigating and studying the Real rights for security based on Independency theory in Germany's civil law, someone think the same value orientation should be adopted in the near future and therefore to set up our own circulation mortgage system.What Independency theory of Real rights for security solves is only the question of demonstration and public credit of Real rights for security which is most important to the circulation problem. To adopt Independency theory is not the only way to reach the subject. In fact, under the dependency theory, the subject can be reached only if the exist of creditor's right can be guaranteed.Combination of the mortgage and securities has two kinds of structure, one is that the Real rights for security is the center of the structure, the other is that the creditor's right is the center of the structure. The mortgage security in Germany belongs to the former, which is on the base of Independency theory and does solve the question of demonstration and public credit of mortgage. As for the latter, based on Dependency theory, the effect of the mortgage will be influenced by the effect of creditor's right, so the effective exist of creditor' right is still to be solved.It can be found that the mortgage security in Germany with the public credit has its own special system basis. Besides the Independency theory, the Abstrakionsprinzip plays an important role in it. So, the Abstrakionsprinzip should be adopted altogether if we adopt Independency theory. It can be founded that the criticized subject is France civil law when we study the views which criticize the Dependency theory. Oneimportant fact or system base has been neglected here. The Registration law in France has much difference from ours, which may cause much difference in the result and provide more space for choice.Moreover, the lessons of mortgage securities in Japan, apart from the direction spirit of government, mainly came from its fault in Registration provision, which has the similar fault as France's. In other words, that the mortgage securities in Japan have no public credit is the main reason for failure. There are two ways that Japanese can make their own choice to make the mortgage securities have public credit. One is to abandon the Dependency theory and to adopt the Independency theory and Abstrkionsprinzip. And take the legislation of registration in Germany as its example, i.e. to change the registration-effective principle into the registration-antagonastic principle. The other way is to change its registration law and take that of Switzerland as example, i.e. to change the registration-effective principle into the registration-antagonastic principle and the form examination principle into the substance examination principle, which makes it possible that creditor's right really exists to maximum degree in different way.Generally speaking, the orientation of mortgage is to make the value of real estate's circulation possible. The mortgage securities based on Independency theory in Germany complies with this trend. But the mortgage securities based on Dependency theory is also accordance with this trend if only the creditor' right can be guaranteed. Besides, Abstrakionsprinzip on triangle relation in securities makes thoroughly the transfer of securities...
Keywords/Search Tags:Mortgage, Demonstrative Principle of Real Right, Public Credit of Real Right, Abstrakionsprinzip, Independency Theory of Real Rights for Security, Dependency Theory of Real Rights for Security
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