| The maximum amount mortgage, as a special system, is adapted the need of credit, and makes up for the common mortgage's lack. In some country, such as Japanese, the utilization coefficient of maximum amount mortgage has been over utilization of the general mortgage. Our country "law relating to guarantees" has provided maximum amount mortgage system, but it is too simply and some contents run counter to the general law of maximum amount mortgage. Which must mot vantage the untization of maximum amount system. So it is essential to explore and research it, so it can be much perfect.This article is in main using comparing way and analyzing maximum amount mortgage prescribe of our country and other country. Point out some inadequate places in our law, and other countries law concerned in which what served our reference and quotation, and what aren't for ours.The article consists of five parts except of foreword and end word. In the first part, I analyze the function and specialty of maximum amount mortgage, pointing out that maximum amount mortgage has the value of making economy and law carrying into effect and circulate necessary funds and draw commodity circulation function, which is not passed for other mortgage. The generate of maximum is not as same as traditionalcivil law mortgage's general rule-subordinating or accessory features,what are guarantee by which are not defined creditor's right in future. But when constituting it, we must predetermine maximum amount. It is notmaximum amount mortgage if it is not determined.By analyzing to maximum amount mortgage in this part, and examining provisions of the sixty-first forbid primary contract creditor's right assignment in our countries "law relating to guarantees", pointing out unreason of this provision.The second part is about maximum amount mortgage's term of guarantee. We think of those will become maximum amount mortgage by some certain relations of law such as future creditor's right, existing ' creditor's right and bill creditor's right.Analysis if recall bill creditor's right can be maximum amount mortgage. In addition, I also discoursed that general creditor's right isn't in the range of maximum amount mortgage, and also related it is not precise. That is the provision in the fifty-ninth in our counties "law relation to guarantee".In the third part I described the subject matter competence of maximum amount mortgage.In some other counties' statute book, such as "French civil code", "German civil code", "Japanese civil code" and Taiwan province "civil law right over things amended draft", are all provide that real estate is the subject matter of maximum amount mortgage. The law of Japanese and Taiwan province are also provide chattels mortgage, but Taiwan's law "chattels guarantee deal law" also provides chattels maximum amount mortgage, but the law of Taiwan province "civil law right over things amended draft" point out it is only real estate that can be as subject matterof maximum amount mortgage. In that part, it is approached real estate mortgage's history, and modern chattels mortgage's economic back, the range of the chattels mortgage subject matter, chattels maximum amount mortgage's chattels subject matter, and its competence. I think it is must be limited in means of production chattels part.In fourth part, I describe legislative express, content of institution of assignment of mortgage's order and of abandon of mortgage's order, and then I analisised the question of assignment and abandon of maximum amount mortgage's order. I think after original document is determined, we should allow to define the order of assignment and abandon of the maximum amount.In last part, I describe three peculiar institutions about maximum amount mortgage, that is, assess application institution, reduce application institution and extinctive application institution. Analisised the necessary of assess application institution's exist, approached the determined cause and determined validity in maximum amount mortgage. I think... |
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