The Study Of Tort Liability For Hypothec

Hypothec is called "the king of guarantee ", is the most important real rights for security in civil law countries since the Roman law. The essence of hypothec is value rights,and the pledgee may seek the right of preferred payments to the exchange value of the mortgaged property,in order to realize creditor's rights guarantee or financing function. China has established the modern hypothec system since the beginning of the 21st century, and with the development of market economy, hypothec is playing a more and more important role.There are two models to protect the hypothec,one is tort liability protection,the other is the right of claim for real rights protection,which both have different functions. Meanwhile, there are three kinds of theory which are the right of claim for real rights protection, tort liability protection pattern uniformly and the unity between the foregoing two views. This paper argues that the second kind is better after the analysis of legislative logic, legislative tradition and legal practice.Violating hypothec usually displays for violating the mortgaged property,while this paper analyzed the types of violating hypothec in the perspective of the mortgaged property infringement,and introduced the law how to pretect hypothec when somebody transfer the mortgaged property illegally and mortgage property suffer inappropriate behavior.The legal application of responsibility of hypothec infringement should abide by the principles,including work in accordance with the law, justice and efficiency.The basic principles, constitutions and limitation of action in the application of law are all special.Because the types of infringement of the mortgaged property are different,the subjects who infringe hypothec are also different, specific type has exclusive law applicable rule.This paper will make the legal application of responsibility of hypothec infringement more accurate, reasonable and efficient.