Repeat The Mortgage System

With the development of socio-economy and the maturity of the socialist market economy,there is an increasingly urgent demand for fast,efficient financing tunnel.Traditionally,mortgage known as King of Security can not satisfy mortgagors' request for financing needs although it can guarantee creditors' rights.Mortgagors want to optimize their own property,hoping to be at least most of the property for subject matter,which can subjectively pay the way for repeated mortgage.Meanwhile,because of the character of not transferring subject matter, this character also cause that there are several mortgages with different order on the same subject matter,the objective is also to provide security for repeat the basis of reality.Therefore,the effect of repeated mortgage emerges in the process when the function of mortgages transfers from guarantee of the pay of debt to financing.It is contradictory that Guarantee Law prohibited repeated mortgage,but provided the mortgage sequence for the same subject matter to more than two mortgagees.The sequence provision is meaningless for mortgagees if there only exists re-mortgages without repeated mortgages,because each of mortgage debt can be discharged.In practice,the repeated mortgage of phenomenon,is widespread and the object is very extensive,this exceeded the original forecast.In keeping with this trend,Property Law abolished the ban on repeated mortgage. Although the Property Law indirect willing to identify repeated mortgage,related legal system was not complete,which would probably greatly reduce the functions of repeated mortgage.This thesis explores repeated mortgage related question of how to clear the relevant issues with a view to be helpful in order to improve the related laws and develop repeated mortgage's financing role.Besides the introduction and conclusion,the article mainly consists of four chapters as follows:The first chapter outlines the repeated mortgage.This article discusses the definition of repeated mortgage,the history of repeated mortgage as well as the evolution and development in our country.First,on the meaning of repeated mortgage,there has been controversy in academic on repeated mortgages and re-mortgages.According to the behavior and results of repeated mortgage,this thesis clarifies the meaning of the repeated mortgage,holds that repeated mortgage refers to a form in which collateral set were mortgaged to several unsecured creditors in result of a number of competing mortgage burden,and mortgage-secured claims in excess of the total value of the subject matter. Secondly,according to t the history of development of the repeated mortgage, foreign civil code allow the existence of repeated mortgage,and its development are mainly concentrated in the improvement of the system of publicity.However, repeated mortgage in our country experienced the process of recognition to deny to the conditional recognition and to entirely sure.The second chapter discusses the effectiveness of repeated mortgage.Repeat mortgage,the majority of national legislation does not negate its effectiveness,but by the provisions of the sequence to resolve competing on the same collateral of the majority of the conflict among the mortgages.In our country,however,on effectiveness of repeated mortgages,academics set off controversy.By the analysis of theory of invalid,theory of restriction and theory of effectiveness, author considered that the invalid theory and the limitations theory had drawbacks in theory and practice.Therefore,to recognize the effectiveness of repeated mortgage is in line with the requirements of contemporary economic development.The third chapter discusses the subject scope of repeated mortgage and the improvement of system of publicity.As the subject of repeated mortgage-real estate,movable property and rights,the scope of its subject matter are constantly expanded,In particular,we should focus on the repeated mortgage of movable property.The repeated mortgage of movable property is a double-edged sword,it is capable of financing,but can not guarantee the safety of transactions,so the mortgagees are between efficiency and safety in the game.Meanwhile,system of publicity is not very comprehensive and the publicity n system of real estate, movable property and rights are different,especially,each of them has an internal defects.Undoubtedly,it is an enormous challenge for repeated mortgage which need perfect system of publicity.Therefore,publicity system should be improved by harmonizing mortgage registration office,integrating rules of registration as well as establishing a query system.Only publicity system has been improved, repeated mortgage can fulfill its function.The fourth chapter concentrates on the discharge of repeated mortgage.A number of mortgages will have formed a right to compete when they exist on a same property.The significance of sequence of repeated mortgage is to prevent disorderly competition and establish a reasonable allocation rules.The principle of sequence is very important because it can decide the realization of the right.From the legal provisions and judicial practice,the principle of sequence consists of priority of registration,same time and same sequence,earlier registration and the principle of equality.Sequence of repayment mainly includes two legislation patterns,the theory of fixed sequence and the theory of promoted sequence. Author considers that our country should adopt the theory of promoted sequence in light of advantages and disadvantages of the two legislation patterns as well as our country's legal environment.Of course,we do not rule out the possibility of fixed sequence along with economic development and the development of a mortgage system.Since the mortgage sequence essentially has been manifesting one kind of right,mortgagees can deal with it in which includes transfer,waiving and alternation of sequence.The chapter depicts the conditions,procedures and effectiveness of managing of mortgage sequence of mortgagees.In short,the purpose of sequence is that the sequence should be balance between the fairness and efficiency without prejudice to the interests of others when mortgages conflicted.The conclusion is the general summary of my ideas in this thesis.