A Study On The Scope Of The Third Party Without Confession In Chattel Mortgage

It has seen increasingly wide application of chattel mortgage system in modern society. Our Guarantee Law and Property Law all have stipulations on chattel mortgage system. The establishment of the regions’ chattel mortgage system has mainly referred to relevant legislation in Japan and Taiwan, where it adopts antagonism for the registration of chattel mortgage, as a result, the registration itself is no longer an essential element for hypothecation to become effective, rather, it is the essential element to oppose the claim of a third party. The regions has stipulated in the Property Law that chattel mortgage right is not allowed to oppose a third party with good will unless it is duly registered. However, as for the scope of the third party with good will, there is no explicit conclusion either made by legislation or within the academic circles. This paper attempts to analyze and make a judgment on the “good will” of a third party with good will, as well as lists and analyzes specific types of the third parties so as to have an explicit definition of the scope of the third party with good will.Section 1 has made a brief introduction of the development of chattel mortgage system under the two law systems. The chattel mortgage system is originated from the ancient Rome at first where it was once abolished due to lack of publicity. Later on, though it also exists in continental law countries, there is little room for its development since it is restricted by the principle that property right shall be defined by laws. Whereas under the Anglo-American law system, the development of chattel mortgage system has not been too much obstructed, especially in the draft of Uniform Commercial Code in the US, where it has made unified regulation of various chattel guarantee system. Hence it is worth to be learned from.Section 3 has discussed as whether such third party should have good will and how to define such good will. By introducing the development of good will in Civil law, we can know that good will originates from ethics, which had long been divided ever since the promulgation of Roman law. In particular, one is the good will in terms of the code of conduct, which is usually called integrity; the other is the subjective good will, which is a judgment on the action performer’s inner state of mind. In order to protect the interests of mortgagee, those third parties must have a good will, for which, the author considers that it has included the subjective good will as assessed by the law, but has excluded the gross negligence of a action performer.Section 4 has listed and analyzed the specific types of the third parties with good will, in which it has analyzed and made a judgment on the third parties to which the chattel mortgage right may oppose one after another. The latter buyers, other holders of real rights granted by way of security, general creditors and lessees have been discussed respectively in this section before a concluding remark is made.