The Analysis On The Mortgage Of The Management Right Of Real Property

The mortgage of the management right of real property (MRRP) is a new type of the Mortgage of Rights, which MRRP is the subject of. The mortgage of MRRP is the result of economic development and plays an important role in enhancing the financial capacity of debtor and protecting the claim repayment of creditor. Although lots of contradictions and disputes in judicial practice need be solved immediately, legal theory and existing legislation can't make specific regulation and adjustment on the mortgage of MRRP. The mortgage of MRRP is discussed in the respects of theory and actual operation in order to resolve the problems of uncertain concept, inadequate bases, irregular procedures of establishment and special ways of realization. In theory, on the one hand, on the base of analyzing the definition and the attribute of MRRP, the concept and characteristics of the mortgage of MRRP are determined, which are the requirements of establishing the mortgage of MRRP. On the other hand, the bases of the mortgage of MRRP are discussed in four respects of jurisprudence, legal economics, the basic principles of civil and theories of the mortgage, which provide theoretical support for legislation and judicial practice in future. In actual operation, on the one hand, the procedures of the establishment and the reasons of the elimination of the mortgage of MRRP are analyzed, with reference to existing laws and related legislation cases; on the other hand, the special problems in the realization of the mortgage of MRRP are pointed out, such as the value assessment of MRRP, specific ways of the realization and the effect on the owner of the real property. Through systematical researches on the mortgage of MRRP, legal suggestions of renewing legal idea and formulating legal norms are made, in order to establish the mortgage of MRRP in theory and direct the judicial practice.In addition to introduction and conclusion, the article is divided into five parts:The first place of this article makes the definition on the mortgage of MRRP. Firstly, the concept and the attribute of MRRP are elaborated. Secondly, the article analyzes the definition of the mortgage of MRRP and indicates the characteristics of the mortgage of MRRP in the subject of mortgage, the establishing procedures, the state of ownership and ways of realization of the mortgage. Finally, the affiliations and differences are discussed between the mortgage of MRRP and the mortgage of land contractual management right.The second place of this article discusses the bases of the mortgage of MRRP. Firstly, jurisprudence basis of the mortgage of MRRP is discussed in the perspective of the values of the interests and freedom in the law. Secondly, on the basis of efficiency principle, legal economics basis of the mortgage of MRRP is explained by analysis tool of supply-demand and cost-benefit. Thirdly, it is indicated that the mortgage of MRRP is showcase of the Autonomy Principle by the reflection of Numerus Clausus. Finally, it is discussed that the mortgage of MRRP is the practical application of the theory of the mortgage, combined with the mortgage and the pledge.The third part of this article elaborates the establishment and the elimination of the mortgage of MRRP. According to conditions needed by the establishment of the mortgage, the claims activity of making a mortgage contract and the non-legal activity of applying for registration of the mortgage of MRRP are the establishment activities of the mortgage of MRRP. Firstly, the attribute of claims, specific content and formal requirement of the contract of the mortgage of MRRP are discussed in detail. Secondly, it is pointed out that the mortgage of MRRP should take the legislation cases of registration effectiveness. When applying for registration of the mortgage of MRRP, the parties should submit relevant documents and certificates which are censored formally only. Finally, it is discussed that the mortgage of MRRP is eliminated in the conditions of the elimination of original claims, the elimination of MRRP, the pass-by of existing period of the mortgage and so on.The fourth part of this article discusses the realization of the mortgage of MRRP. As MRRP is the subject of the mortgage, the procedures of the realization of the mortgage of MRRP are particular. Firstly, three conditions of the realization of the mortgage of MRRP are elaborated. Secondly, by introducing legislation cases of the ways of the realization of the mortgage (the public power's relieving and self-help), the ways of the realization of the mortgage of MRRP are indicated. The value assessment of MRRP is carried out in the way of the average annual benefits. The specific ways of the realization of the mortgage of MRRP are analyzed, which are auction, discount, or sale. Finally, the problems of the realization effect of the mortgage of MRRP are discussed, which are the claim of the owner of MRRP, the claim of the third person and the effect on the owner of the real property after the realization of the mortgage.The fifth place of this article makes legal suggestions about perfecting the mortgage of MRRP. Firstly, the legal idea should break through the limitations of Numerus Clausus and advocates diverse utilization of competence. Secondly, the view and method are discussed, which are about resolving the problems of the mortgage of MRRP within the existing legal framework. Finally, it is pointed out that legal norms of the mortgage of MRRP are formulated when legislation conditions are ripe.