Research On Hochstbetragshypothek

As a special mortgage, hochstbetragshypothek has been always popular in many countries and regions for its safety and efficiency as well as its function to guarantee uncertain floating obligatory rights. How to improve this system to create a safe and efficient credit guarantee for socialist market economy is a significant aspect of the establishment of real rights.However, concerned terms in China' s Guarantee Law and recently publicized Draft of Civil Code of PRC are so simple that they prevent this system from functioning well. With a view to China' s present situation and advanced experiences in other countries, an in-depth research on this system endows this paper with significance and value both in theory and in practice.This paper comprises seven chapters with five main aspects.The first aspect, that is Chapter One, gives a general description of the concept and history on hochstbetragshypothek. Through an analysis of the restriction by our legislators of the application types to this guarantee, it is pointed out that such a restriction neglects the upriver problem of the deficiency of relevant provisions and the flaws of this system itself, but only focuses on the downriver problem of the application to the business types.The second aspect, that is Chapter Two, discusses the establishment and validity of hochstbetragshypothek. On the establishment of this guarantee, the contract and its targets as well as the registration of hochstbetragshypothek are discussed. On its validity, these three points should be paid special attention to in the legislation and practice in the future: that the lack of provision for the principle capital maximum is likely to mislead practice, that the rule of registration first and time first is recommended to solve the case of the coexistence of hochstbetragshypothek and ordinary guarantee, and that hochstbetragshypothek should not be considered invalid in the case of no-obligatory rights or one-dealing all along.The third aspect, which is also Chapter Three, on the basis of the fact that hochstbetragshypothek is subject to its fundamental legal contract, holds that the transfer of hochstbetragshypothek should be accompanied with its fundamental legal contract. Through an analysis of Item 61 of Guarantee Law of PRC which forbids the transfer of the principle contractual obligatory right, it is pointed out that such an exclusion provision is intended to assure the business security under a faulty market economy today at the cost of sacrificing the value of hochstbetragshypothek. This paper proposes that emphases should be mainly put on seeking ways through which both the functions of hochstbetragshypothek and the assurance of business security can be guaranteed.The fourth aspect, that is Chapter Four and Chapter Five, describes the ascertainment and realization of hochstbetragshypothek. It is pointed out it' s quite necessary to introduce the systems of right of claim for reducing maximum and right of claim for extinction for reference so as to be fit for the need of increasing business.The fifth aspect, that is Chapter Six, discusses other three relatively independent questions on hochstbetragshypothek as follows: that whether hochstbetragshypothek is disobedient to the rule ofstatutory real right, that maximum should not be restricted under the value of the mortgaged article, and that several points from the hochstbetragshypothek in Japan are worth taking into consideration through a comparative research on this guarantee system in China and in Japan.