Research On The Supreme Mortgage System

The maximum mortgage, also known as the limited amount of mortgage is called root mortgage in the Japanese civil law, which is established to guarantee all the unlimited mortgage that may occur in the future of a certain period. The maximum mortgage is a special mortgage guarantee system that appeared with the development of commodity economy, which originated in Germany and is most perfect in Japan nowadays. The maximum mortgage appeared in Japan since Meiji Era and has been developing and perfecting until today. There are up to 22 related regulations in today’s Japanese civil law which make detailed rules for the establishment and transfer of the maximum mortgage, the range of the guaranteed principal claim and protection of benefit of the mortgagor, the mortgagee and the third person, making this special law system meet not only the need of modern society continues trade form but also the pursuit of convenience and security of modern society economy trading so as to improve the development of trade and the prosperity of social economy.The study of maximum mortgage is relatively late in our country. The concept of the maximum mortgage is prescribed in the "security law" 59 th article. Although it describes the meaning of maximum mortgage, it is too simple and too long and does not adapt to the current economic development model of coexistence of a variety of trade ways. Even through the “property law” has made further regulation for the establishment and transfer of the maximum mortgage, the range of the principal claim that been guaranteed and protection of benefit of the mortgagor, the mortgagee and the third person, the current law in our country still does not seize the difference between the maximum mortgage and general mortgage, only provides for a fallback provision that described as “The maximum mortgage subject to the provisions of this section besides the provisions of general mortgage in Chapter 1”.This article analyzes the advantage of Japan’s maximum mortgage system according to the relevant laws and regulations of the Japanese civil law and Japan’s relevant academic point of view. Then it combines practice problems with relevant law of maximum mortgage in China’s "guarantee law" and "property law", uses writing techniques such as comparative analysis, case analysis and inductive inference to propose points that our country has the shortages such as narrow range of the maximum mortgage, confusion of the maximum mortgage’s identify and rule and lack in restrictions of maximum mortgage. I think that the legislation of our country should expand the scope of guaranteed creditor’s rights of the maximum mortgage, show respect for concerned parties’ options and give supplementary provisions for reason of at establishment and change of the maximum mortgage to solve the inconsistent trial results caused by unspecified regulations. Finally, law of our country should improve the increase rights of deduction or elimination claim to protect the interests..