On The Guarantee Of The Right To Keep And In Line

With the development of China's market economy, there are increasingly more and more debt relationships in every social aspect. Struggling for the realization of debt rights has become an obvious character in the history of legal development. Many a creditor set up collateral rights on the same real property, resulting in the competitive exists of real rights for security. Under such circumstances, it has great significance to research the sequences of different collateral real rights because it relates to the extent to which people can realize their rights. However, the "real right law" and the "security law" and the relevant judicial interpretation have very simple regulations on this issue, which cannot meet the legal practice, in addition, it is also lack of systematic research of the issue in academe of our country. This paper research the competitive existence and the sequence of real rights for security in a comparative measure, systematic measure and balancing of interest measure, in the purpose of further perfecting the relevant legal system, reasonably normalizing the sequence of real rights for security, and playing its role in promoting economic development and stabling economic order. This paper has the following three parts besides the preliminary remarks:To research this question, first I'll define the so-called competitive existence of several real rights for security. I hereby use "competitive existence" to distinguish concurrence and "co-existence", and on that basis this paper researches the condition on which real rights for security exit competitively. Only on the relevant conditions do have the competitive existence of real right for security and its corresponding sequence question. To ascertain the sequence of real rights for security, we should combine the interpretation science of civil law, interest-balancing method, and the basic principle of real rights for security. Or else, it will affect the fundamental value of real right system. As a kind of value right, the sequence right of collateral real right can often be transferred or thrown, or moved with the change of basic right. Under such circumstances, there will be different results considering "sequence fixing" or "sequence moving" that will be taken. Considering China's present situation, I put forward that China should take the way of "sequence moving". Meanwhile, this paper researches how to deal with the sequence and its adjustment. Considering the above questions belong to the area of general principles, I will talk about them in part one in detail.The phenomena of the competitive exist of the concurrence of security interest is very usual, especially in the repeated-mortgage. The second part of the article will make a conclusion of the competitive exist of the congener security interest in one part. The repeated mortgage is an important embodiment for the mortgage to exert its function, and it is also a necessary require for exerting the most value of the guaranty. We should insist the repeated-mortgage system, on this basic premise, we should obey the basic require of the register system to adjust the order of the security mortgage, that is, registered has a priority of the unregistered, all- registered depend on the register time, the same order among the all unregistered. The article also discuss the problem that how to confirm the time of the register. In addition, on the basic of admitting the indirect possession which largely exist in the economic society, the article admits that the pledge right also can bring abroad competitive-existed. The article discuss the way of adjusting the order of the competitive-existed pledge right. That is, for the moveable estate, we should decide the discharge order on the instauration time, for the right pledge right, we should decide the discharge order on the register time. For the problem of the competitive-existed of the lien, the article adopt a wide standard, that is ,it is can form a competitive-existed of the lien in the circumstance of the indirect possession, as to suit the complex state in the ordinary life and to balance the benefit between the parties. To settle the problem of the discharge order, we generally adopt the standard that the direct-possession has a priority to the indirect possession. In addition, the article also admits the bona fide acquisition of the lien, the lien which formed by bona fide acquisition also has a priority to the original lien.The competitive-existed of security interest between different types is also very usual. It will bring the phenomena of the concurrence of different type of security interest because of the design of different instauration consideration and register mode. For this, the third part of the article makes a deep research. Because of the establishment of the moveable estate system, the problem seems especially intensely on the issue of the competitive-existed between hypothec and pledge right. It is obviously absent to adjust this problem in our legal system and lack of operation regulation. The article discuss the cases of the competitive-existed between hypothec and pledge right in a systematic view, that is, combining the form order and register to adjust the discharge order, basic on that, to table a proposal a discharge order which can balance the benefit between different parties. The competitive-existed between hypothec and alien is also very obviously, it seems suspicious that giving the priority to the alien in any case when the hypothec and alien make a competitive-existed in our legal system. The article considers that we should differentiate the civil alien and business alien, and give different protection extent because of the different valuation. The article consider that in the business alien, the alien should not have a priority to the hypothec to insure a equitable discharge ordering the civil alien, the article also discuss the different cases of forming a alien, and discuss it in different cases. In addition, when the alien and pledge right make a competitive-existed, it will also results in different cases, the article also make a discussion about these circumstances. Lastly, the article also discusses about the competitive-existed between untypical security interests. Considering that it has not established a integrated system of the untypical security interests in our country and lacking of some necessary systems, the discussion primarily adopt some theories existed in developed countries. As a newly-emerging type of security interest, alienation guarantee is developing fast because of it's a good many merits. The article discuss the competitive-existed between the typical security interests and alienation guarantee, and the principles are also the systems of register, delivery and forming time. In addition, it will also happen competitive-existed between conditional sale and typical security interest. In that case, how to adjust the buyer's expectant right and other hypothecs is also an issue basic on the register system, benefits balance and the civil principles. The article also makes a discussion on that.