On Independency Of The Mortgage Right

The"Law of Rights over Things of the People's Republic of China"("Law of Rights over Things)"was put into effect on Oct. 1, 2007 as expected. It is stipulated in Article 192 in the Law of Rights over Things that no mortgage right can be separated from the creditor's right and transferred separately, or taken as the security of any other creditor's right. For any transfer of creditor's right, the mortgage right secured for such creditor's right shall be transferred at the same time, unless otherwise it is specially set forth by the law or agreed by the interested parties. There always exist some disputes on the understanding and applicability of this legal provision theoretically and practically from the drafting to the implementation of the Law of Rights over Things. However, is it possible to realize the so-called independency of the mortgage right? If yes, it is necessary to further discuss the issues such as how to understand the independency of the mortgage right and what is the system value of the independent mortgage right. The author tries to brief the production of and foundation of the historical development of the mortgage right in this article, and thus discuss and investigate the subordination of the mortgage law, the independency and the embodiment for the subordination of the mortgage law, and the prospect for the development of the investment mortgage and the mortgage right expressed by securities in China. The circulation and the security form of the mortgage right have already played an important role in financing in some developed capitalist nations. Under the economic development condition, China today should speed up the circulation and security form of the mortgage right, for the concept that holds the subordination to ensure the payoff of creditor's right may not only cause the idling and waste of resources, but also hinder the development of the Chinese social economy. We can transform the system of the mortgage right by legal transplantation, i.e., to draw lessons from the current practices in Germany and Japan, refer to the actual condition in China, decide the appropriate legislative examples, standardize the object of securities, make the trial run of mortgage securities in some fields such as the field of finance, set up the special laws and regulations, accumulate the proper experience, establish the right system and popularize it to other fields. While establishing the security mortgage, we will improve the good faith, registration and other basic systems, transplant the perfect foreign legal rules in China, and promote the economic and financial circulations by fine legal frames.