On The Right Of Mortgage Chase And Reconstruction Of Power System

Market economy is credit economy. In a large degree the development of enterprises depends on credit and Capital . the mortgagee possesses assets and get use of the mortgage, while the mortgagor gets control over the valuation of mortgage to guarantee the safety of loan. With the conception of speeding the circulation of wealth and currency being accepted, the sale of mortgage is frequent during the mortgage term, the function and value of mortgagor' privilege is contrary to that of mortgagee's, with the consideration of guaranteeing the loan, Chinese legislation in hypothecation pro bono mortgagor, while the interests and privilege of mortgagor and third party are ignored, which bring forth the leak of transaction.The article pointed out that the system of mortgage should be rebuilt in order to balance the interest of different subjects, making it possible to max usage value of mortgage asserts and transactional safety.This article is composed of 4 parts about analysis of retroactivity with approximate 40100 characters, the main content of which is as follows:In the first part, the author analyzes the origination of retroactivity and nature of the mortgage. firstly, the author make a systematic consideration of the theories about the nature and origination of mortgage, pointed out that: the retroactivity of mortgage originated from roman time action., with the development of conceptual real right, the protection of mortgage retroactivity evolve from action in rem into civil law. The arguments about the nature of the mortgage involves the theory of real right, of petition right and of control right, the article proposes the theory of control right.The second part gives theoretical analysis of movable property mortgage. In the part, the analysis of English and American legislation and of European in chattel hypothecation was made, the author pointed out that chattel register can't signify the property , with safety of transactions ignored, so before the new measures created, legislation of chattel mortgage should be abandoned.the third part focuses on the real estate retroactivity of mortgage, presents that in the related judicial interpretation of the Supreme People's Court which provides mortgage prior to property of jus tertii, the mortgagor is multiply protected, while the rus for security is sacrificed, the author argued that the subrogation should be entitled to jus tertii., and priority be entitled to mortgagor to balance the retroactivity and transaction security.The forth part is about the priority of mortgagor, this part probes into the origination , function nature and enforcement condition of priority, drives the conclusion that the priority of mortgagor should be adopted.