Practical Research On Malicious Mortgage

Mortgage, together with pledge and lien, constitute the system of debt guarantee. Mortgage is widely accepted in the economic activities as a result of it don’t need to transfer the property and make the mortgagee acquire the compensation priority of the property. Meanwhile, a lot of legal disputes are raised because of mortgage. These disputes may occur between the mortgagee and mortgagor, and sometimes may include third party which means the mortgage infringe on the third party’s interests. To solve these problems, we need to use the legal system of malicious mortgage. The thesis will introduce a special case, and through the case we will discuss the legal issues about malicious mortgage.According to the current legal provisions, malicious mortgage include two situations:one is that mortgagor with bad faith establish a mortgage in order to damage the mortgagee’s interest, the other is that a mortgage is established after the main contract which cause mortgagor is lack of property to discharge other debt. But in judicial practice, mortgage establishing with the main contract also can be a malicious mortgage. On the other hand, the identification of malicious mortgage should be proper to prevent the transaction security of mortgage. So we discuss the essentials and the legal application of the malicious mortgage which is established with the main contract and the acquisition in good faith of mortgage. Then, the legal system of malicious mortgage can be more comprehensive.The thesis will include issues as follows:the classification of malicious mortgage, the analysis of current provision of malicious mortgage under the guarantee law and bankrupt law, the question that mortgage establishing with the main contract can be malicious mortgage or not, and the discussion about malicious mortgage damaging the interests of third party.We will use the methods of theoretical research and practice study by referring other related monographs, papers and research reports in order to review the current situation and put forward proposals for improvement.The thesis structure is as follows:The introductionThe first chapter:raise the questions about malicious mortgage by introducing a special case. Then we will classify the malicious mortgage. Malicious mortgage include two situations:mortgagor establish a mortgage in order to damage the mortgagee’s interests, and a mortgage is established in order to damage the interests of mortgagor’s creditor. The second chapter:by analyzing essentials of malicious mortgage under the guarantee law and bankrupt law, we can conclude that the malicious mortgage is commonly identified as a rescissible civil conduct.The third chapter:according to the discussion of problems in the case, we will conclude that mortgage which is established with main contract also can be malicious mortgage. And we will also analysis the essentials and the application of law about malicious mortgage established with main contract.The fourth chapter:we will draw a conclusion that mortgage infringing on the third party’s interests can be malicious mortgage. If the claim of third party belongs to the obligatory right, we can also define that mortgage shall be a rescissible civil conduct. If the claim of third party belongs to property right, we may consider that mortgage shall be null and void except mortgage is acquired in good faith.