By Guarantee Law Mortgage System

Mortgage been hailed as "guarantees", in financial intermediation and promote the circulation of commodities, the realization of security claims, and played a very important role, and give full play to the collateral effect of the law depends on the improvement of the relevant provisions of mortgages. China's "security" on the right to mortgage the provisions of reference in many aspects of the legislation in a foreign country, learn from experience, but not blindly copying the hard move, but from China's national condition, from the legal system and scientific focus, in transplantation and draw Among some choices, have improved, innovation, not only embodies the requirements of modern economic life, but also has a lot of Chinese characteristics. "Security" in accordance with China's national conditions and economic development of the situation, spent dozens of provisions of the mortgage system was more comprehensive system, the nature of the mortgage, the type of effect, and many other elements have specific detailed provisions , This signifies that China's mortgage system substantive development. Mainly reflected in: strict distinction between the mortgage and pledge; defined the scope of the collateral; clear of the charging mode of publicity; expanded the scope of the effectiveness of collateral; clear the mortgage contract, such as content and form."Security" in accordance with China's national conditions and economic development of the situation, spent dozens of provisions of the mortgage system was more comprehensive system, the nature of the mortgage, the type of effect, and many other elements have specific detailed provisions , This signifies that China's mortgage system substantive development. Mainly reflected in: strict distinction between the mortgage and pledge; defined the scope of the collateral; clear of the charging mode of publicity; expanded the scope of the effectiveness of collateral; clear the mortgage contract, such as content and form.China's "guarantee" of security restrictions on the types of claims, to a large extent, this has hampered the maximum mortgage applications. In Japan, the land now in the building of security methods, the maximum mortgage has become mainstream, its utilization rate far exceeding the ordinary mortgages. Therefore, our legislation should also abolish the ceiling types of collateral debt limit, just to be clear from the nature; consortium mortgage refers to a business of existing property, including movable and immovable property and other rights as a whole and on its The establishment of a mortgage, which includes mortgage consortium factories, mines consortium mortgage, utility consortium collateral. The consortium as a whole has an independent special value, the value of its security were far more than the creation of the security part of the total amount, respectively, and avoid the creation of the security procedures and formalities at the many troubles. China's "guarantee" the consortium did not have a mortgage, this does not give full play to enterprises of the overall security of property collection efficiency, to some extent limit the company's lending and trading activities. Therefore, China's "security" should be the establishment of the consortium collateral, its approach to civil law countries such as Germany from the practice of suitable; flow of mortgages and mortgage securities and are closely related to mortgages made right after the registration certificate, a portfolio , With its secured creditors to enter the circulation, thus the liquidity of the mortgage function. In foreign countries, with collateral on the bonds reflects the liquidity of the mortgage, mortgage securities have become a lucrative commodity, subject to the extensive attention of investors.China's mortgage system has entered a new stage. But at the same time, we should also see clearly that the security of the mortgage system requires the imperfections. We should learn from foreign legislative success, with China's national conditions, and improve China's mortgage system, that is to ensure that debt servicing mortgage financing system functions and ensure the security of transactions, so as to China's full market economy service. The article focuses on the introduction of the goods it is economic development to a certain stage of the product. As a secured debt, the creditor is the existence of legal relations as a prerequisite for. Human society as the development of productive forces and the emergence of social division of labor, it appears the product of the exchange, there will be a mutual exchange of contractual relations. This contractual relationship that we have today said the relationship between debt claims. The article is divided into five main parts. Introduction from the mortgage on the outline of the system, analyzed the effectiveness of the mortgage and mortgage effectiveness of the various manifestations of development to achieve effectiveness of the mortgage. Then a mortgage against a number of legal issues raised on the mortgage system perfect.The first part introduces an overview of mortgage. Description of the first mortgage of History, from the history of the legal system in terms of a mortgage than on the right to pledge more later, the initial application of the scope and role of the pledge can not keep up with the right. In ancient Roman law, the first is the security interest in the trust system. That is the guarantor of security will be handed over to the ownership of creditors, the debtor not to perform when the debt, creditors will sell the collateral to debt bondage. Conversely, if the time when the debtor to discharge the debt, secured the title of the re-transferred to the guarantor. In German law, the first is the way of security of all. All of this quality and the trust of Roman law is very similar, is attached as a condition of real estate to the secured claims and to achieve. And to the modern, all countries in the world, most of the legislative regarded as a mortgage of The main form of security, not only on the provisions of the same. After the thesis of the right to social security role. As a security interest, as the value of its essence, the exchange of power rather than the right entity. And mortgage the rights of the debtor when the period of non-performing debt at the time, they collateral discount or auction, the proceeds of the sale of mortgage Priority. Therefore, the mortgage is not the key to the transfer of mortgage possession, set up after the mortgage collateral people can continue the use of collateral, brought into full play the effectiveness of it. At the same time, mortgage collateral on the exchange value of the content, regardless of how the mortgage is to change their form or nature, and its effectiveness will have on the substitute collateral or deformation of the above, and Does not affect the interests of mortgages.The second part of the mortgage on the effectiveness. The effect of mortgage mortgage system is the core of the problem, China will be secured by a mortgage as the effectiveness of a very important part. The effectiveness of the so-called mortgage, is the right person on the mortgage collateral in secured claims priority within the scope of the debt service and the effectiveness of other restrictions on the property and influence. It is mainly composed of: the effectiveness of the collateral, Priority effect on the effectiveness of the secured creditors. The effectiveness of the collateral is also divided into several parts including the principal of which is the collateral effect from the right, from the effect of, the collateral benefits with the effect of property rights, the effectiveness of the yield. First of all, in our current judicial practice of the buildings under construction is not can be used as collateral is a big controversy. One view was that the buildings under construction have not Jianzao Cheng, is not usually on the significance of the independent nature of the economic value of the lack of use, not the nature of the transaction, it is not the subject of a mortgage. Another view was that the buildings under construction is actually a kind of expect to be able to achieve the property, can be used as a collateral of the subject matter. I agree with the latter view, then one of the reasons were analyzed. In our practice, the mortgage from the right to extend, on the understanding of the differences do not exist, but not from the subject of the mortgage effectiveness of the impact is very controversial. One of the views that were not subject to the mortgage effectiveness of the impact of the reasons is that of the main and is relatively independent of the property, the value of an independent Besides, China's security law has not clearly defined. The other view, of the mortgage should be attributed to the effectiveness of the scope. I agree with the latter view and note the reasons. Guarantee Law Article 48 provides that mortgage will have rental property mortgage, it should be in writing inform the tenant, the original lease contracts remain in force. From this we can see that the mortgage is less than the collateral effect of the beneficial use of property rights. This is also the world are basically the principles adopted. Mortgages and the effect on yield, which is recognized by national laws, our country's security law also made clear. Then the analysis of the mortgage Priority effect. Priority mortgage the effect of property rights is superior to the specific claims, the right to the core of the collateral effect. Priority said the effect is that "debt discharge period, the mortgage had not been liquidated, in consultation with the mortgage collateral to discount or through auction, the sale of the collateral from the price of the debt service."The third part of the collateral effect of the realization of the right. Mortgages effect can be achieved. Refers to unsecured creditors expires at the right time, not all of the settlement, the value of collateral on the priority of the debt service. Including the realization of the way, in accordance with Article 53 of the Guarantee Law provides that generally the two: One is the party consultations discount, or a desired auction, the sale of collateral, mortgages from the proceeds of the debt service priorities. Another is the people's court for compulsory auction sale. Finally, the so-called composite mortgage, is that the debtor or a third person using the same should not be separated from the total value of the collateral within the framework of, respectively, to more than two unsecured creditors, the number of mortgages and mortgage-no more than the total For the latter, our country's security provisions of section 54 of the Act, shall be considered as a legitimate and effective, this understanding is more unified. And the effectiveness of the former larger dispute.The fourth part of the mortgage note of a number of legal issues. Mortgages and claims, property rights legal issues. Debt is in accordance with the contract or is in accordance with the law, in particular between the parties arising from the rights and obligations, creditors have the right to require the debtor to discharge debts. Civil debt is adjusted by the property relations of equality between the main important component. China's Property Rights on the implementation of legal, and that is on the right comes from the direct legal requirement. Of a mortgage is the object, "security" can be used as collateral on the type of a permit, restrictions on the Prohibition of the provisions. Then talked about the expectations of property rights secured legal issues, enterprise mortgage legal issues.Part V of the mortgage note of the sound system. Including the right to mortgage the priority of improving the debt service; mortgage on the indivisibility of attitude on behalf of mortgage-what constitutes the law; land use rights of secured and chime in, the mixture of processing, mortgage and land-use rights From; mortgage and land-use rights from the right.