Discussion Of The Reconstruction Of The Mortgage System

The pawnage, the unique traditional institution of our country, with very long history, became into being " the legal institution of pawning right " in the modern civil law, under the interaction between tradition, statutes and western legal system. After liberation, pawming right has been abolished in mainland of our country for some time. But in recent years, with economic development and the continual deepening studies of real right law, pawning right attached our attention again, and also caused much disputation. Whether to reserve pawning right in our civil code or not is the focus of the disputation. At present, though the draft of real right law includes the pawing right, its legislative reason is insufficient. This is unfavorable to further transformation and development of the institution of pawning right. In this case, it is very necessary to carry on the deep discussion to the pawning right.The pawning right is formed in the special historical conditions of our country. Only through studying history of the pawning right earnestly, could we really understand the essence of pawning right as a social phenomenon. The application of the historical method, is one characteristic of this article. How to integrate pawning right into today's civil law system while reasonably keeping its original nature is what this article pays attention to.This article consists of three parts.The first part is about the historical evolution of the pawning right. It can divide into four stages: the stage of homologous development, the stage of mergence, the stage of perfection and the stage of modernization. In the history of pawning right, the stage of mergence is the most important period in which the function of pawnage changed from security to usage. Historical studies has shown, the pawning right embodies legal intelligence of the practical and flexible Chinese style.The second part discusses the disputation about reserving or abolishing of the pawning Right thoroughly. In this part, the necessity of the reconstruction of pawning right has been demonstrated. Those scholars who insist on abolishingpawning right have an idea that, without corresponding social conditions, pawning right has been declined and should be replaced by repurchase contract and real property pledge. This article argues the pawning right has relatively unique value and function. And in the actual life of our country, there is spontaneous phenomenon of pawnage of farmlands and houses, which proves that realistic foundation of the pawning right still exists. After refuting the theory of abolishing, this article draws the conclusion: in the civil legislation of China, the institution of pawning right should be retained.By consulting the past legislative examples and the civil customaries, the third part discusses some concrete problems about rebuilding of institution of pawning right. These questions mainly include object, obtainment, term, transferred pawnage, effect, pawnee's right, the relationship between pawning right and mortgage, redemption and its expiration, elimination and so on. The article proposes some concrete suggestions about the reconstruction of the institution of pawning right. For example, we should enlarge the range of objects of the pawning right.It is significant for improving the utilization efficiency of the real estate to establish and perfect the institution of pawning right. Futhermore, the studies of the pawning right can bring some beneficial enlightenment on civil legislation of China style to us.