An Analysis Of The Current Mortgage

The current mortgage system is respond to the needs of the economic growth of our society. It is the result that real estates mortgage system develops, and it is a new kind of real estates mortgage system which is different from the traditional protective mortgage. At present, our country legislation has not been able to obtain the prompt reflection regarding the current mortgage. Moreover, there is short of thorough investigation and discussion all-round theoretically about the current mortgage. This article broke through the situation that the current mortgage is simple introduction with the contrast research to the Chinese and foreign guarantee real right. with the correlation literature, through the summary analysis related elaboration, the utilization comparative analysis, the induction survey and so on many kinds of research technique, in view of the circulation mortgage concept, the basis, the historical development, the social function and so on. A series of basic questions has made a more comprehensive careful elaboration. This article has completely presented the current mortgage system's legal principle theory with law explanation, and put forward some legislation proposal by unifying the overseas legal standard and our country actual situation. The main text includes five following parts beyond introduction and conclusion:The first part, it has clarified the meaning of the current mortgage. The current mortgage is give first place to creditor's rights provides the mortgage guaranteeing, can break away from host creditor's rights but independent existence, and as one kind of real estates mortgage may transfer as underlying investment liberty go bail for way. The current mortgage is one kind of the mortgage that has the foundation of keeping creditor's rights and investing. This article has formed legal relation such as borrowing or lending money, guaranteeing, investing between them. Furthermore, the article analyzed the differences of the current mortgage and the protective mortgage. The protective mortgage is that preserves the creditor's rights not to anticipate its circulation as the goal one real estate guarantee way. With keeping a mortgage intact, existence all differentiates the mortgage in the respect of the effect that male mortgage instructions, public show, the mortgage metastasis, mortgage and host creditor's rights relation etc. The protective mortgage having intense attaching to host creditor's rights following nature, but the current mortgage attaching circulating is very weak with nature.The second part, it has explained the independent theory of real right guarantee is the theory basis of the current mortgage. The independent theory of real right guarantee is refers to the real right guarantee is one kind may the independent real right, it does not rely on any right exists, the real right guarantee's potency is not influenced by other behavior's potency. The independent theory had reflected the real right guarantee is the value power essential attribute. The value attribute of real right guarantee is refers to the guarantee real right person take not to obtain the guarantee use value as a goal, but is through to guarantees the exchange value control achieves its goal. Not only the value power is the mortgage essential attribute, also is the possession guarantee common attribute. The independent theory has developed the real right guarantee investment function, consummated the preserve function, has satisfied the huge investment demand to the economical development. The independent character of the current mortgage points out the real estates mortgage is value right in nature. The thing value includes use value and exchange value. In his ownership, ownership shows solicitude for the thing use value, but the real estates mortgage controls the thing exchange value with benefit. Value right is the real estates mortgage's total nature. The attractive nature just is the real estates mortgage's general nature. The current mortgage makes the thing exchange value easily.The third part, it has compared and analyzed the development of mortgage system and some countries about the current mortgage with different stipulation. The article has pointed out that, the commodity economy development is the basic propelling force for mortgage system development. The commodity economy developed countries have the developed mortgage system, the commodity economy not developed country's mortgage is not developed. The fair deal and the transaction security is the basic principle for mortgage system's development. The fair principle is impelling the mortgage system unceasing evolution, causes the mortgage system to be day by day completes. The mortgage system is generally begin in the right with the together shift which holds to the right with the distinction shift which holds finally to arrive the right and to hold all does not have the shift developing process.The forth part, it has elaborated the social function of the current mortgage. Mortgage system has the society function that the creditor's rights guarantee and the financing invest in. Both the protective mortgage and the current mortgage have the function of protecting, realization and the safety trading being able to ensure creditor's rights that creditor's rights ensured. But follow nature since keeping a mortgage protective emphasizing mortgage attaching to host creditor's rights, have increased the cost trading , have bringing about the heavy responsibility keeping a mortgage intact having no way to be competent for financing investment right now. The current mortgage has depended on oneself independent character and circulate characteristic, has made up the defect keeping a protective mortgage, having been tied in wedlock circulating on the marketplace to achieve financing investment's purpose each other with negotiable securities.The fifth part, the article has discussed the necessity and possibility of building the current mortgage system in our country. With the rapid development of our country economic, our country has accumulated the certain fund and has formed stable financial market, which requests more safe investing ways. These factors having formed the economic development rule by law all has provided to mortgage system creation circulating possible and convenient. Finally, the article has put forward with some legislative suggestions, work out a special law "the current mortgage law ", including the general rules and the concrete provisions, advising that the current mortgage should be included in our civil law in the future.