Common Mortgage System

As a legal means of dissolving the risk of market economy and promoting the development of market economy, guarantee legal system, which stretches across the two fields of law of rights over things and law of creditors rights, has become an important legal system for civil and commercial law in every country, and the mortgage system in it is the best generally recognized way of making good the obligation loss. However, because of the price fluctuation of real estate and the emergency of multi-mortgage forms, the creditor is worried about that mortgage right cannot fully guarantee the compensation of the obligation. Under this circumstance, joint mortgage emerges. The debtor guarantees a big amount of debt with the joint many small amount property, which not only offers guarantee for the creditor, but makes good the defect of low value of small amount property, therefore, it makes the debtor get big amount current funds with the joint mortgage of small amount collateral. Because the common ground of the joint mortgage can compensate the inborn defect of common mortgage, many countries make law for its confirmation. The legal relations of joint mortgage are complex, which involves the relation between mortgagee and mortgagor and the interests of the following order mortgagees and so on. The situation in the real life is even more complicated. Therefore, each country has its own legislation according to their national conditions and legislation environment. There is joint mortgage system in our country and the academic field has tentatively achieved a consistent understanding, but the stipulations of Item Two, Article 180 of officially passed Law of Rights over Things still are rather fundamental. This article has an analysis and research of joint mortgage system so as to further perfect this system and make fully use of its function in financing.This article has four parts besides introduction and conclusion.Part one is about the fundamental theory of joint mortgage. The article analyzes the concept of joint mortgage and the distinction with similar concepts. It points out that the features of joint mortgage are: more than two gages offer guarantee for the same obligation. This article also makes an analysis and discussion of the characteristics and classification of joint mortgage.Part two is about the establishing means of joint mortgage. The article analyzes the formation of the concerned persons of the joint mortgage contract, the form of joint mortgage right enactment and the scope of things that can become joint gage under the situations of belongingness difference of the gage. Combining the features of joint gage, this article makes a detailed analysis of public means of joint mortgage right enactment.Part three is about the effect of joint mortgage. The article elaborates the effect of joint mortgage from the perspective of mortgagee, mortgagor and the following order mortgagees respectively. For the effect of the mortgagee, the article analyzes the free guarantee principle of mortgagee and its setting reason and the restriction of the mortgagee free right to choose and the reason of emerging restrictions. Based on the analysis, the article elaborates priority bearing burden principle of mortgagor, the distribution of price proportion principle, the principle of restricted amount compensated, and the principle of prohibiting extra-amount auction. For the effect of mortgagor, the article analyzes the principle of partition and distribution and the principle of subrogation. For the effect of joint mortgage on following order mortgagees, the article analyzes the basis, necessity of the existence of the following order mortgagee's subrogation right and the execution of the following order mortgagee's subrogation right.Part four is about perfecting the legislation of joint mortgage system in our country. The article analyzes the legislation present situation of joint mortgage in our country, pointing out the existence of the defects of solving method of joint mortgage without distinguishing different conditions and the inconsequence of stipulations of recourse of joint mortgagees. Aimed at these problems, the article proposes the legislation advice for perfecting joint mortgage system of our country.