On Maximum Mortgage

Maximum mortgage refers to a kind of special mortgage by usingmortgaged property to guarantee the present or future indefiniteobligatory right happening continuously in a specific range to a maximumlimitation on basis of contract between mortgagee and mortgagor. As aspecial system, it guarantees the unspecific credit rights based oncontinuous relationship in a period of time. It also helps to simplifythe mortgage guarantee procedures and reduce the cost, so it is adoptedin civil code in many countries. As our country has entered WTO, thenational economy becomes globalized and integrated, and maximum mortgageperforms more and more important functions in the circulation of fundsand commodities, the promotion of economic efficiency, and the guaranteeof the realization of obligatory right. With the feature of independence,it helps with the stability of the legal relationship in continuous trade,avoids the complication of all these procedures and relationships, andpromotes the function of hypothec that it guarantees the obligatory right.In this way, the birth of this essay, in which the author makes deepinvestigations into several important issues of maximum mortgage system,has great importance in both theory and practice.In foreword, the author shows the writing necessity from the practical importance of maximum mortgage. Chapter 1 tells the concept,history and characteristics of maximum mortgage. This essay does not talkmuch about the definition of maximum mortgage, but adopts the descriptionof it in drafted Sachenrecht Law. There are regulations about maximummortgage in civil law of France, Germany, Switzerland, Japan, raiwan, andthe main land China, which the author analyzes in the history part. Inthe characteristic part, beside the indefiniteness and maximum limitationof guaranteed obligatory right, the author also analyzes the theoriesabout its subordinateness and he holds that maximum mortgage is notsubordinate but independent. Chapter 2 analyses the value orientation,the systematic value, the negative effect of maximum mortgage, and thevarious attitudes towards it in different countries. According to theauthor, the negative effect is related to systematic defects; they cannotobscure the positive ones and can be restrained. Chapter 3 talks aboutthe setting and registration of maximum mortgage. Chapter 4 covers theobligatory right scope guaranteed by maximum mortgage, especially generalmaximum mortgage and its maximum limitation. In the author' s opinion,according to the independence of maximum mortgage, general maximummortgage should be admitted theoretically, and should not be forbiddenin legislation. As for the maximum limitation, there are two competitiveways of setting: Maximum Limitation of Maximum Limitation of ObligatoryRight and Maximum Limitation of Principal Sum in practice. The authorapproves the former and makes some analysis about it. Chapter 5 analysesthe reason and validity of the ascertainment of maximum hypothec throughenumeration. Chapter 6 talks about the alteration and transfer of maximumhypothec, which includes the alteration of obligor, guaranteed obligatoryscope, maximum limitation and auditing date. In Chapter 7 the authordiscusses about the solution of the problem that some exceptional fromguaranteed obligatory rights not being paid while the payment term comes. The relationship between the burden of proof and the implementation anddefinition of maximum mortgage is also talked about in this part. Chapter8 introduces two peculiar institutions about maximum mortgage, that isreduce application institution and extinctive application institution.Some savants in Japan and Taiwan are studying these two institutions.Through analyzing the theory and practice, the author thinks itunnecessary to refer to them when we legislate. In Chapter 9, somesuggestions for the perfection of our system of maximum mortgage areraised. First, enlarging the obligatory right scope guaranteed by maximummortgage. Second, perfecting the system for the setting of maximummortgage. Third, perfecting the system for the registration of maximummortgage. Forth, perfecting the rules for the alteration of maximummortgage. Fifth, allowing duplicate or excessive mortgage of guaranties.In the conclusion part, the author shows his confidence with the futureapplication of maximum mortgage.