Research On The Legal Questions Of Alteration Of The Real Estate Mortgages

Real Estate Hypothec is an important security interests, its occurrence change and elimination will directly affect the interests of mortgagor, hypothece and third party. From the legal practice, under different theories, the conditions and effects about the change of the real estate hypothec are quite different.Essentially, real estate hypothec is a limited right of things with adroit of value. Based on the basic principles of the theory of property rights, this thesis discusses the nature of the real estate hypothec at first; then, according to the new Real Law, the author analyses problems that exist in the establishment of the real estate hypothec, the transfer of hypothecs, and the realization of the right. By drawing on legislation and practice in other countries and regions, the author suggests to improve the existing problems. The whole article can be divided into three parts:Part one, the establishment of real estate hypothec. This paper mainly discusses the establishment of the real estate hypothec on the basis of the legal rights. The establishment of the real estate hypothec implies the start of correlation between the parties. Meanwhile, it also implies that the emergence of a new right in the property belonging to the nature of changes.As to the establishment of real estate hypothec rights, Law on Security provides that the real estate hypothec right shall be not established unless there is written hypothec contract as well as the corresponding registration formalities, the real estate hypothec rights come into effect on the date of its registration. Such provision may lead to the mortgagor's intentional breach, which is not conducive to the proper performance of the contract and could not effectively protect the interests of creditors.According to from the basic principles of publication, draws a definite line between hypothec contract and establishment of real estate hypothec rights, so that the hypothec contract can come into effect in a way the same with other kinds of contract, and the registration is the symbol of change of property right, if no registration, the real estate hypothec can not be established.Thus, through the registration gives the credibility to the real estate hypothec, the creditors will have the right to the public. It is in favor of doing business safely. If hypothecrs put the estate under hypothec in sale, creditor can declare compensations for the breach of faith. It can be promised that the anticipations which people related to the contract have when they register the contract can be realized. The activities which break the contract can be avoid and the benefit of creditor can be protected as well.Part two is the change and the transfer of real estate hypothec. We state what we find from two angles. First, we pay our attention to what the influence of the estate hypothec may be, because the form of the estate under hypothec has transformed. in practice ,the transfer of hypothec will affect the interests of mortgagor ,hypothece or assignee. Legislation should project the hypothece's priority right as well as interests of third party and security.Hypothec's right of pursuit derives from nature of the estate hypothec. Normally, hypothec's right of pursuit should be admitted and the existence of the estate hypothec should not be influenced by transfer of the estate under hypothec. It should be permitted that if hypothece agrees accepting the money earned which by selling the estate under hypothec as the substitute of the estate under hypothec. Liquidation costs should be introduced in legislation in our country. Through the dealings, which happen between assignor and the assignee, the problem brought by transforming the estate under hypothec can be resolved.Second, the author discusses the influence of the estate hypothec induced by the primary contract transformation. Both traditional Civil Code and Real Law generally agree with that the hypothec is attached to creditor's right. However, in essence, real estate hypothec is a limited right of things with adroit of value. It is determined by the value characterization of hypothec that there is no inherent affiliation to the ensured creditor's right. The hypothec is not affiliated to the ensured creditor's right necessarily. It can be considered as an unattached right.Acting as the value right, the core of the hypothec lies in the right holder's control on the guaranty, which is a kind of interest. The hypothec can not only be invested, transferred by different businessman but also vouch for other creditor's rights. The unattached theory of the hypothec accords with the nature of the hypothec more because it can not only accelerate the circulation but also realize the function of the hypothec adequately. At present, we should treat the problem of the unattached nature of the hypothec neatly according to the need in the reality and the legislation and judiciary practice. We should not insist the attached character of hypothec neatly at the cost of the safety and convenience of the trade. The unattachment of the hypothec will be the trend of the development of the modern hypothec system. The hypothec on real estate and the main creditor relationship, which led to changes in the main contract secured contracts invalid or canceled, does not necessarily lead to changes in the hypothec. With the agreeable alteration of the main contract, the mortgagor or the hypothece can request the right request the return of unjust enrichment. The mortgager can request the mortgage to cancel the mortgage registration or take other measures to cancel the agreement as a public action.Part three is the realization of real estate hypothec. If the estate under hypothec is certain, how to achieve the hypothec is not only related to the hypothec interest, but also to the normal operation of secured transactions. Unreasonable system often invites secured transaction costs. Self- combining Marxism with the judicial and legislative protectionism, did not violate the right to property nature, and give choice to the real estate hypothec clients.So, in the design of the system, which can be used to realize the estate hypothec, efficiency of the transaction should be paid more attention and the scope of self-help should be regulated clearly. Firstly, it may be permitted that hypothecr and hypothece can make a deal about collateral action in advance. Secondly, we can use the examples in Germany and Taiwan for reference: security interest need not be achieved by litigation. The Hypothece can registers copies for the court to auction collateral. The court can check up the application of the creditor in formal, but do not check up if the hypothec or the debt exists.If the mortgagor or the debtor doubts whether the entitative juristic relationship of the hypothec or the secured credit exists, a litigation should be brought objections by the mortgagor or the debtor doubts, or a legislation of the inexistence of the hypothec by the hypothecr's change on the creditor and the debtor simultaneously.Thirdly, the system of the compulsory management should be introduced in the realization of the estate collateral to protect the interests of the creditor and guarantors. .