The Maximum Amount Mortgage System

The Hochstbetragshypothek is a special form from mortgage guarantee. It preferred by clients due to its circulation, safety and convenience. There is regulation about Hochstbetragshypothek in civil law of Germany, France, Switzerland, Japan, Korea as well as Taiwan and it results in effectiveness. It's worthy of spresding. The fourth chapter of, which was passed on March 16th,2007, has regulated the system of Hochstbetragshypothek, proposed detail definitions on the meaning, transfer, alteration and confirmation of Hochstbetragshypothek. This has provided detail legal reference for the practical application of Hochstbetragshypothek, and should be regarded as an improvement of legislation. However, compared with the legislations of Japan and Germany, is not perfect, and does not involve some basic principles of Hochstbetragshypothek. Furthermore, there are many differences between Hochstbetragshypothek and ordinary mortgage, and the industry and business groups in China lacks practice on this. Therefore, it is of great necessity to study this subject in depth and introduce it to the whole country. Consequently, the birth of this paper has great importance in both of theory and practice.This paper aims at establishing and perfecting the system of Hochstbetragshypothek in our country, starting from the point that Hochstbetragshypothek is a kind of special mortgage supplying guarantee for indefinite obligatory rights in present and future, giving some suggestions on basis of practice.This paper has five parts. The first part is a summary of the Hochstbetragshypothek. Firstly, it introduces the concept, and then illustrats detailedly the characteristics of Hochstbetragshypothek. Through the comparison of various theories, this paper argues that it has special mortgage dependency; it also has special specificity, its specificity not aimed at a particular debt; in setting up mortgage, it needs to set the highest debt limit; there is a necessary to definite for fulfilling Hochstbetragshypothek. Then we discusses the social functions of it from the aspects of effectiveness and safety in trading. At last, we discuss the Hochstbetragshypothek in France, Germany, Japan and Taiwan to understand the historical evolution of it.In the second part, we discuss the creation and legal validity of Hochstbetragshypothek. The first concern is what kind of debt can be created. It includes the dicussion of general legal validity and types of fundamental legal relations of Hochstbetragshypothek. Secondly, it discuss the mortgage contract and the registration of Hochstbetragshypothek. About the validity of the Hochstbetragshypothek, the paper discuss the obligatory right scope guaranteed by Hochstbetragshypothek and maximum limitation of it.The third part is the study of the alteration of Hochstbetragshypothek which includs the alteration of guaranteed obligatory scope, maximum limitation and auditing date. This paper also discusses the disposition of the Hochstbetragshypothek. According to the law of China and abroad, this paper discusses the transfer of obligatory right guaranteed by Hochstbetragshypothek and the transfer of Hochstbetragshypothek right.The fourth part analyzes ascertainment and implementation of the Hochstbetragshypothek. The necessity, resons and the validity of ascertainment are the main parts. And under what kind of conditions, the Hochstbetragshypothek can be implemented.The last part is on the perfection of the Hochstbetragshypothek system of our country. Firstly, it discusses the present situation. While establishing and perfecting the Hochstbetragshypothek system, the creation, the alteration of guaranteed obligatory scope, ascertainment should be emphasized. The balance of right must be noticed. This paper proposed that the asking right system and asking eliminating right system should be creased.