Study On The Droit De Suite Of Mortgage

The effect of transfer of the mortgaged property and the enforcement of mortgage right have impact on the coordination between credit safety and transaction safety, safety and efficiency as well as the balance of interests while varied parties involved. So it is important to design the whole system scientifically and rationally, for the sacrifice of any party's interests will undermine the function of whole mortgage system. While to design the rules on transfer of mortgaged property, the conflicts of interests among mortgager, mortgager and transferee should be fully considered and a proper arrangement should be made with the adherence to the basic value of the Property Rights Law as making the best possible use of property.First, in this essay, the author states the reasonableness and necessity of permitting transfer of mortgaged property, affirms that mortgager will not lose the right of dispose and is entitle to transfer the property freely when the property is under mortgage. And at the same time, the author agrees the theoretical basis of droit de suite and the mortgagee's interests can be protected through the enforcement of the recovery right. Second, the author introduces the legislation of droit de suite in several countries with typical civil law legal system and analyses the particular characteristics of these different registrations. Third, the author points out the defects and malpractice of the legislations in our country after analyzing the legislation which state ambiguously the recovery right of mortgage and restricts the transfer of mortgaged property based on the tracing the development of system in respect of transfer of mortgaged property in Chinese legislation on guarantee. Finally, according to the real situation of our country, the author presents some concrete proposals on perfecting the system of transfer of mortgaged property and droit de suite of mortgage to reach the balance between static safety of property rights and dynamical safety of transactions with the reference to successful expericnees of other countries.