The System Of Transfer Of Mortgaged Real Property

From Roman law to modern law, mortgage has been the most important real right guaranteed in the civil law of all countries.The issue of this paper is the system of the transfer of mortgaged real property, which is an important item in mortgage system.There is great theoretical value and practical significance in the research of the system of the transfer of mortgaged real property. The basic category and the essential issue needed to resolve in real right law can be concluded as"to maintain the static and to secure the dynamic". While the system of the transfer of mortgaged real property deals with many theoretical issues, such as the fundamental principles and systematical value of mortgage, the rule of right variation of real property, pursuance force of mortgage, subrogation of mortgage, the purging right and protection on the third party, all of which embody the core value of real right law's"to secure the dynamic". So it has great theoretical value. Moreover, in judicial practice there are plenty of suits resulted from the mortgagor transferring the mortgaged property without the consent of the mortgagee, especially in the situation of the mortgage system in real estate in which the buyer making bold to transferring the mortgaged house. Therefore it is of great instructive significance to have a deep research into the system of the transfer of mortgaged real property for the judicial practice.It is necessary to point out that the concerning legislation on the system of the transfer of mortgaged real property in our civil law is not integrated; the same is the newly adopted Real Right Law. Whereas, through the comparing with and referring to the various legislations of the main civil law countries, the author makes a systematical research on the system from the angles of theoretical analysis, practice and the processing real right legislation. There are two emphases. One is whether the mortgagor is entitled to freely transfer the mortgaged real property after the mortgage is established, the other is how to design a system to balance the interested relationship among the mortgagee, the mortgagor and the transferee if the mortgagor is allowed to freely transfer the mortgaged real property.There are four sections in the paper. The content is as follows: The first section is a summarization of the transfer of mortgaged real property. At first it has a brief introduction of the transfer of mortgaged real property. Then, in the view of comparative law, it illustrates the concerning civil law theories and legislations of some civil law countries (including Germany, French, Japan and Swiss etc.). Through the comparison we know that most countries allow the free transfer of mortgaged real property, but they have different provisions on how to balance the interests of mortgagee, mortgagor and transferee.The second section is the theoretical foundation of the transfer of mortgaged real property. There is an analysis on the theoretical foundation of whether allowing the transfer of mortgaged real property or not on the basis of legal theories. The most important issues are pursuance force of mortgage and the subrogation of mortgage sale cash.The third section is the protection and balance of the three parties in the transfer of mortgaged real property. On the premise of allowing the free transfer of mortgaged real property, it further analyzes how to protect the interests of the mortgagee, mortgagor and transferee and how to balance the interests. In this section it illustrates and comments on several categories of theories and legislations.The forth section is the comment on the transfer of mortgaged real property in China's real right legislation. At first it summarizes and comments on the provisions on the transfer of mortgaged real property in the civil legislation of different levels. Then it makes a comment on Article 191 of Real Right Law and gives specific suggestions on its further perfection.