Deconstruct And Perfect The System Of General Mortgege

General mortgage is a special kind of mortgage which is important in the promotion of finance and full employment of property and the protection of credits. Countries in Roman Law Family, such as France, Germany and Italy, have general mortgage in their Civil Code. Furthermore, in order to balance interests of the relevant parties, they adopted the doctrine of choice, the doctrine of partition, the principle of proportional distribution of value, the principle of primary encumbrance and the rule of adjustment. The advantage of general mortgage needs the assistance of the establishment of relevant legal system. However, we do not have the provision for general mortgage, except Article 75 of the Interpretations of the Supreme People's Court about Guarantee Law. This article, concentrating on general mortgage, analysis the system of general mortgage theoretically with the emphasis on the issue of effectiveness, implement of general mortgage and the relief of mortgagee and creditor.Part one is the introduction of general mortgage. First, on the basis of the differences among the understandings of the range and character of general mortgage, the article points out that it is not necessary to confine the character and the range thereof. Second, the article depicts the four characters of general mortgage. Third, the article specifies general mortgage from enterprise mortgage, multiple mortgage and floating charge. Forth, the article introduces five methods of classification.Part two is the character of general mortgage. There is no consensus among scholars about this issue. After introducing three schools of study, that is simple mortgage, multiple mortgages and eclecticism, the article prefers the second.Part three is the implement of general mortgage, which is the keystone of the article. The article introduces different legislations in the world, such as, the doctrine of free choice and restriction; the doctrine of partition and proportional distribution of value; the principle of primary encumbrace and obligation priority; the rule of adjustment and the rule of unadjustment. Then, the article furthers discussion according to the restriction of the portion of guaranty burden. The article points out that restricted general mortgage shall be implemented according to the portion of guaranty burden, which is the invention of the article. Full general mortgage shall be implemented, as a whole, under the doctrine of partition; separately, under the doctrine of partition, except the debtor's goods is on the auction—because the goods will be sale whatever.Part four is the subrogation and right of claim of the guarantee and following mortgagee. The article puts forward that the guarantee have both the rights of subrogation and claim which are caused by the same reason and support each other, but differ in purport, character, subjects and range of implement. Second, the article analysis the subrogation of following mortgagee and concentrates on the rationality, condition of implement and the relation with the subrogation and right of claim of the guarantee. At last, the article introduces the method of relief when the general mortgagee waives or transfers the right. In addition, the article firstly proposes the method of calculation of credit underlying the mortgage.Part five is conclusion. On the analysis above, this article gives the suggestion for legislation.