Mortgagee Effectiveness Study Of A Number Of Issues

For the present there are serious credit crisis in our country, and the bad creditor's rights due to the lack of credit have become the big barrier of market economy's normal operation. So it's an urgent task of our cities to study the system of obligation's guarantee——mortgage right system,guarantee the realization of creditor's rights, reinforce the social credit. However in the practice and theory research of mortgage right the efficacy of mortgage right is the kernel. And it's the efficicency of mortgage right that need to be perfected in our legislation. So the writer applies the methods of contrast analysis, law-economy discipline, interest-weighing and analysis of practice and so on comprehensively to study the problem of the efficacy of mortgage right, to improve the mature of mortgage right's theory and the perfect of mortgage right's legislation .The articlebe can be divided to be four chapters:Chapter one is a general introduction to the mortgage right , and consists of the mortgage right's definition, characteristic and essence. This is the base of construction of mortgage right. Mortgage right refers to the right that creditors have the priority of clearing off the debts on the exchange value of real estate, personal estate and rights provided and possessed by the debtor or third party to guarantee the creditor's rights. Mortgage right belongs to real right, and has the characteristic of real right such as the essence of legality, priority, control, exclusiveness and claim. However the goal of mortgage right is to security the realization of creditor's rights, mortgage right has the essence of subordination, no-division which is different form the real right. At last, mortgage right is the right that controls the exchange value of mortgage matter to enjoy the priority of clearing off the debts, so it has the essence of value and subrogation.Chapter two is the problem of occurance and obtain of mortgage right. On the average the mortgage right has legal efficiency from it's existence. So the essence of mortgage right's efficiency is the problem of obtain of mortgage right. In our country the mortgage right can be gained through the juridical action, statutory and inherit. In the practice for the most part the mortgage right is established through sighing the mortgage contract.Chapter three: the writer discusses the mortgage right's efficiency. The mortgage right's efficiency consists of such aspects: the mortgage right's efficiency on the maincredit right, the mortgage matter and the relation between parties of mortgage right, the relation between mortgage right and the usufruct and creditor's rights on the mortgage matter. In our country the range which mortgage right security consists of main credit right, interest, the damages from the breach of contract, damages and the cost of realizing the mortgage right. After the establishment of the mortgage right, the ownership of the mortgage matter is limited by mortgage right, but the third party's ownership of the mortgage matter can not resist the mortgage right on the average. The conflict between the mortgage right and the usufruct should be settled on the time that the establishment of the rights. The conflict between the mortgage right and the guarantee real right should be settled on the rule of overlap of guarantee real right. The creditor's rights on the mortgage matter can not resist the mortgage right on the average, but the leaseholder's right can resist the mortgage right when the real estate's tent established before the matter is mortgaged.Chapter four is the efficiency of the several especial mortgage right. The legal mortgage right come into being by the statutory directly to guarantee the especial creditor's rights. The establishment of legal mortgage right need not perform the process of registration and it is priority to the mortgage right established on the agreement. The inventory mortgage in the property law draw lessons from the floating guarantee in the Anglo-American law system, and the party can set up mortgage on the existing property and the property obtained in the future as a whole. The range of mortgage matter can be specific when the mortgage right is implemented. At the same time the mortgage right's efficiency of claim is limited. The hochstbetragshypothek guarantee the creditor's rights which come into being in the future in the maximum range. And it is different from the common mortgage right in the subordination, range of creditor's rights and the extinct of mortgage right.