| "Assurance Law of People's Republic of China" (Hereinafter referred to as "Assurance Law"), Supreme People's Court's Judicial Interpretations of Applying "Assurance Law", "Real Right Law of People's Republic of China" (Hereinafter referred to as "Real Right Law") make regulations to the ceiling amount of mortgage. However, comparing with "Civil Code of Japan", we find our regulations are relatively simple and weak in manoeuvrability; there are still several points to do further study.By using method of comparative analysis, the paper studies on how to improve ceiling amount of mortgage, and try to propose my own views, in order to provide reference for perfection and practicing of the mortgage.The Paper is divided into three chapters.Chapter One: Connotation of ceiling amount of mortgage.Subchapter One: Definition of ceiling amount of mortgageAfter comparative analysis on definition of ceiling amount of mortgage, as well as relative regulations, I regard it is necessary to make more scientific provision for the definition.Subchapter Two: Base legal nexus of ceiling amount of mortgageCompare and analyze on the base legal nexus, the applicable scope of ceiling amount of mortgage is too limited to fully utilize its function. Therefore, we should draw lessons from Japan's legislation to expand the applicable scope of ceiling amount of mortgageChapter Two: Alternation and Ascertainment of ceiling amount of mortgage.Subchapter One: Alternation of ceiling amount of mortgage.Focus on alternation of debtor, guaranteed obligatory scope, maximum limitation and auditing date.Subchapter Two: Ascertainment of ceiling amount of mortgage.Analyze on the necessity of ceiling amount of mortgage, I consider the regulations to ascertainment reasons of "Real Right Law" are simple; Study on the ascertainment reason, especially introduce the system of claim in "Civil Code of Japan", to see if any help to the perfection of China's ceiling amount of mortgageIn addition, this part also introduces the legal validity of ascertainment of ceiling amount of mortgage.Chapter Three: Obligatory right of ceiling amount of mortgage.Subchapter One: Obligatory right scope guaranteed by ceiling amount of mortgage.The cost for realizing mortgage shall not be treat as part of maximum limitation amount, but shall be deducted from income of guaranty auction or forced sale.Subchapter Two : Restriction of ceiling amount of mortgageTo avoid malicious creditor make use of maximum mortgage to control value of guaranty, "Civil Code of Japan" establishes system of claim for reducing sum, and the system of claim for extinguishment. But our "Assurance Law" failed to establish such systems. In my opinion, to full utilize positive function of ceiling amount of mortgage, we may follow Japan to establish above two systems in ceiling amount of mortgage.Finally, briefly summarize this paper. |
PDF Full Text Request