The Research On Difficult Problems In Maximum Mortgage

Under the modern market economy circumstance, the maximum mortgage, as a special mortgage, guarantees the continuous obligatory rights based on continuous relationship in a period of time. The maximum mortgage performs more and more important functions in the circulation of funds, the guarantee of economic relationship. So the maximum mortgage is adopted in many countries. German, France, Japan and Taiwan all put it into the civil code. China also regulates it in Law of Rights which is passed on March 16^th 2007.In practice, there are many problems in using the maximum mortgage. This article analyze its establishment, confirmation and validity. Studying the foreign law, this article also study Law of Rights and Explaining of Guarantee Law in order to do good to the regular development of the maximum mortgage system.This article has four parts except preface and concluding remark.The first part, mainly discuss the basic theory of the maximum mortgage system. The maximum mortgage refers to a special mortgage which the debtor or the third party agrees to use the mortgaged property to guarantee the continuous debt within the maximum limitation of guaranteed obligatory rights .When the debtor does not pay the debt, the creditor has the rights to sell the mortgaged property to realize the credit. The maximum mortgage has two characters: special independence and special certainty. It is limited by the quality and quantity, as it say, it is limited by the basic law relationship and the maximum limitation of guaranteed obligatory rights .The second part, mainly discuss the problems in establishment. Including the kinds of the guaranteed credit ,the establishment of contract and the validity of registration. In my opinion, the excessive maximum mortgage has many shortcomings, so we should reject it .The basic law relationship mainly refers to continuous commodities. The contract includes the content of the maximum limitation of credit and the auditing date. To protect the benefits of the third party and protect the deals, the establishment of the maximum mortgage must be registered and the registration at the beginning of the establishment is enough.The third part, mainly discuss the problems in the confirmation. I mainly discuss four aspects of this problem: the meaning of confirmation, the cause ,the validity , the reduce application institution and extinctive application institution. The cause of confirmation includes the agreement of one or two parts or the happening of some rules in law. Once confirmation happens, the credit and the guaranteed obligatory scope is confirmed. In some countries, the owner of the mortgaged property has reduce application institution and extinctive application institution. They are not ruled in China, this is a pity.The fourth part, mainly discuss the problem of the realization of the maximum mortgage. What kinds of credit are included in the range of credit? In my opinion, the maximum limitation of the credit includes principal,interest,delay interest,penalty。Considered to make the commodities more convenient ,the two parts can transfer the maximum mortgage and this transference should be registered again. The realization is different from confirmation. If we want to realize the maximum mortgage ,there must be two conditions. The first one is, the debtor does not pay the debt when the payment term comes. The second one is ,the mortgagee should prove the existence and the real amount of the credit.This article primarily use compare analysis means and historical analysis means. I hope my study can help the development of the theory and perfection of the maximum mortgage system. So it can play a due role in the market economy.