On Conflict Between Real Rights Guaranteed

The purpose of this thesis is to give an advice to legislation on how to prevent and solve of the conflict between typical real rights guaranteed in our country. The full text is divided into three chapters altogether. Chapter one focus on the concept of the conflict between typical real rights guaranteed, the constitutive elements and the reasons of the conflict between typical real rights guaranteed. First of all, the author expounded the definition of the conflict of typical real rights guaranteed, namely the conflict between several real rights guaranteed coexisting on the same property. Then, the author analyzed the constitutive elements and the reasons of the conflict between typical real rights guaranteed, and summarized its reason as flows. Firstly, one of the modern legislate value that civil law countries advocate is that making the best use of property. So most of civil countries'law allow several typical real rights guaranteed coexist on the same property. Secondly, The limited value of the same property can't meet with the realization of typical real rights guaranteed coexist on the same property. Thirdly, The country legislates does not arranged the corresponding sequence system of typical real rights guaranteed coexisting on the same property. Finally, the author introduced a series of principles to arrange the sequence of conflicting typical real rights guaranteed. Chapter two focuses on the conflict between typical real rights guaranteed of the same kind. This chapter describes on the possibility and sequence of the conflict between mortgages, pledges, and liens. The author point out that the conflict between mortgages may take place in reality in our country. As to the sequence of the conflicting mortgages, the author summarized out three kinds of ways on our country legislation. On the conflict between pledges, the author divided it into two. Firstly, the conflict between pledges may take place when there are pledge established by actual handing over and pledge established by handing over by order on the same property. Under the situation, the pledge established by actual handing over should be realized first. Secondly, the conflict between pledges may take place under situation that sub-pledge and pledge established coexist on the same property .At the time, a pledge that established by transferring pledge should be realized first. On the conflict between pledges of rights, the author held that the conflict between pledges of rights only takes place between the pledge that established on a trademark right, or on a patent right, or on a copyright. As to this, the pledge that established first should be realized first. On the conflict between liens, the author held that the conflict between liens might take place in our country. The Lien produced in the condition that people lost his occupy on a property on reason that can't attribute to himself can conflict with the lien produced according to the law system that people who have good intention should be protected. As to this, the lien produced according to the law system that people who have good intention should be protected should be realized first. Under the situation that transferring work, the lien conflicts may take place too. As to this, we should make the last lien take precedence over the first lien. Chapter three described the conflict between typical real rights guaranteed of different kind, namely the conflict between mortgage and pledge, mortgage and lien conflict, lien and pledge. On the conflict between mortgage and pledge, the author held that the conflict between mortgage and pledge might take place in reality in our country. The author advocate that on the conflict between mortgage that established first and pledge that established later, we should use principle of arranging the sequence according to the time of the typical real rights guaranteed established generally. At the same time, we must carry out the principle in law that if the mortgage has not been registered it can't oppose any right. If the mortgage has been registered, it should take precedence over the pledge on the same property. If the mortgage has not been registered, the pledge on the same property should take precedence over it. But under the situation that the people who established the pledge have malice, the pledge should not take precedence over the mortgage on the same property. On the conflict between the mortgage that established former and the pledge that established later,there may be three kind of situation. As to arranging the sequence of the conflicting typical real rights guaranteed, it should be do respectively. First of all, if a people established a pledge former and then he established a mortgage later, so the conflict may take place between pledge and mortgage. As to this, we should make the pledge take precedence over the mortgage. Secondly, if the people who established a pledge agree the people who have the pledge to establish a mortgage for anyone else on the same movable property, the conflict may take place between the pledge and the mortgage too. As to this, we should make the mortgage take precedence over the pledge. Thirdly, if the people who established a pledge don't agree the people who have the pledge to establish a mortgage for anyone else on the same movable property, the conflict may take place between the pledge and the mortgage too. As to this, we should make the mortgage take precedence over the pledge. On the conflict between mortgage and pledge established at the same time. The author held that the conflict might take place between mortgage and pledge. When the legal mortgage and the pledge coexist at the same time, the two should be in the same sequence. As to the fact that the mortgage registered voluntarily and the pledge coexist at the same time, if the mortgage that registered voluntarily has already been registered, the two should be in the same sequence. But if the mortgage registered voluntarily has not been registered, we should make the pledge take precedence over the mortgage. On the conflict between mortgage and lien, the author expounded the possibility that mortgage conflict with the lien and the question of sequence. As to this, generally, we should make the lien take precedence over the mortgage. But if there is a debt between the mortgagee and the lienee, we should make the pledge take precedence over the lien. On the conflict between lien and pledge, the author held that the conflict between lien and pledge might take place in reality in our country. As to the sequence of the conflicting lien and pledge, we should distinguish the different situation, so as to arrange their sequence. Under the situation that the pledge establish on the same property firstly, if the lienee is the pledgee at the same time, he can choice to realize his pledge or lien. Under the situation that the pledgee entrust the collateral to the third person for the moment to keep or repair it and he third person get lien according to...