Research On The Rule Of Transfer The Hypothecated Property

The mortgage system not only can guarantee the security of creditor's rights, but also does not affect mortgagee to utilize pledge. And that is why the mortgage system could be widely applied. But out of self-interests, the mortgagors always have their own consideration and have their requirement of transferring pawn. So considering the whole society, it is necessary to set up a system that is helpful for the pawn's transfer and it also can enhance the benefit of the whole society. On the other hand, the pawn has creditor's rights, when transferring; it is a deeply-thinking-worthy problem about how to balance the interest between mortgagee, mortgagor, and the third party.According to other countries' systems of the mortgage's transfer, the mortgagor has the right to properly dispose the pawn. But in order to make sure the security of mortgagor's rights and endow him with hypothec, the third party would not get his complete ownership of the pawn. To protect the third party's interest and balance the interest of the three, some systems are set up, including System of Substitute Discharge, System of Subrogation, and System of Elimination.About the legislation of the pawn's transferring; our country has gone through several stages. According to the writer's view, the prescription to pawn's transfer is a kind of historical backset. Under the principle of making full use, and the basis of the three's interests, the writer tries to construct a mortgage transferring regulation combining Substitute Discharge, Subrogation, and Elimination. This thesis mainly includes five parts.Chapter 1 mainly introduces overseas' lawmaking mode on the mortgage' transferring. It mainly refers to three modes in German, France, and Japan respectively.Chapter2 gives introduction about the four periods of China's legislation of the pawn's transferring. And the writer also gives some brief comments about the legislation.Chapter3 gives a conclusion about the guide principle during the transferring including: firstly, regulation should make maxim use of the resource. Secondly, the interests of mortgagee, mortgagor, and the third party. Should be balanced. Thirdly, the regulation of should agree with the basic ideas and principles of The Civil Law.Chapter4 the writer makes some detailed analysis on several important problems on transferring. The first problem is whether it is necessary to ask for mortgagee's agreement before transferring. Some believe that it's necessary to get mortgagee's agreement in order to make sure the security of creditors' rights. But others think that it's not useful for improving the efficiency of utilization of the social resource. The writer agrees with the latter. The second problem is whether it is necessary to establish hypothec and point out its cons. The third problem is what is the signification and limitation of substitute discharge regulation and subrogation regulation. The fourth problem is whether to keep elimination regulation. On the basis of France and Japan' regulation, the writer generalize its concept and function. the writer also conclude its limitation and offer several suggestions for further improving.In Chapter 5, the writer briefly analyzes the several protocols about Property Rights Law, and put forward the construction of law. The disposition of mortgagor to the mortgage should be validated. On this basis, a system of the mortgage's transfer should be set up which is combined The price of subrogation system, alternative settlement system and elimination system.