Study On The Collateral Transfer The Force Of Law

The mortgage transfer system,part of the security system,is animportant legal system. Many people are involved in disagreement during transfer of mortgage, and the complicated law relationships between them are formed. At the same time, transfer of mortgage may also result in the conflicts between the dispose right of the mortgager and the right to mortgage owned by the mortgagor and the right of the transferee of the object of pledge.It is a worthy subject to establish a set of scientific and sound mortgage transfer system in the tri-relationships. It is important to balance of interests and to balance the relationships between security benefit and economic development. "Real Right Law" is also has drawbacks,although it makes great progresses in this field. In view of the purpose of "make the best use of everything" carrying by "Real Right Law", the paper aims at elaborating advantages and disadvantages in China's security legislation on the mortgage transfer system and putting forward suggestions to help perfect the mortgage transfer system by comparing and analyzing various academic opinions concerning the present security legislation system in China and similar systems in other nations. The paper falls into six parts,as shown in the following:The preface introduce the theoretical and practical meaning of the subject and the background of Chinese legal systems.Chapter one provide a skeleton construction of of the subject and define the concept of the title. The History of Chinese legal systems on it is given and the intention behind those codes is investigated gradually.Chapter two is about the contact which is set up in mortgage transfer and its effect. By comparing and analyzing various legislation system in other nations, it is widely believed that the mortgage transfer is permitted in world. Neither "notice", "inform" nor "agreement" will not and should not prevent contact from becoming effective. The relevant article of "Without the mortgagee's consent, a mortgagor may not alienate the mortgaged property" is a deviate from the base of the free choice of partners in traditional civil law. Contact's validity should be maintain so as to develop the circulation of assets.The part from chapter three to five is about effects upon the parties concerned in mortgage transfer. The part falls into three chapter in view of different party,as shown in the following:Chapter three is about effect upon mortgagee in mortgage transfer. three kinds of legislation cases on the protection of the benefit of mortgagee are explained and analysed here. the author analyses the source of mortgage recourse,the character of mortgage security and the nature of the mortgage right. More analysis of the relevant legal regulations on this problem are listed to draw a conclusion that our legislation should definitely admit the right of mortgage on the efficacy of recourse. Then the author argues that the right of mortgage determines the efficacy of mortgage recourse. The nature of the right of mortgage depends on the exchange value of mortgage. Therefore, no matter how and to whom mortgage is transferred,on condition that the creditor can't fulfill the duty on due time,the mortgagee has the right to trace mortgage to exercise the right of mortgage. The restriction on mortgagor's transferring of mortgage is not necessary,for it cannot fully protect mortgagee's benefit but violates the right of ownership in the civil law and economic utility because of the improper restriction upon the right of mortgagor.Chapter four is about effect upon mortgagor in mortgage transfer. The author analyses triditional legislation's favor in restricting mortgage transfer and the nature of mortgage,balance of interests,legislation cases of other nations and economic affair in China, then question as to those so-called reasons for restriction on mortgagor's transferring of mortgage.However,legislation goes too far to violates the mortgagor's benefit and then hinders the good use of mortgage and decreases the effectiveness of circulation. so long as the action of mortgagor makes no damage to the exchange value of mortgage,the right of mortgagor's free transfer of the mortgage should not be restricted.Chapter five is about effect upon transferee in mortgage transfer. Three primary kinds of legislation cases in world on protection of the benefit of transferee are introduced and analysed later. The author then analyses changeful attitude of Chinese legislation and new articles in "Real Right Law" on mortgage transfer with practicalness. For transferee' favor, the possessor's performance right shoud be developped, premising on the right of recourse of mortgage.Chapter six provides some advice such as freeing mortgagor from bond,admitting right of recourse of mortgage, establishing double principle, limiting chattel mortgage,giving the initiative to the transferees to protect their own benefit,and form complete set and so on. the author sums up that the law of China is developing to maturity gradually concerning the problem. It is time for us to make full use of the good chance of real right legislation,observe the nature of real right for security,reconstruct the value of mortgage right system,follow the inner logic of the civil law and manage to balance the relationship between security benefit,disposition benefit and transaction benefit,keep a fair principle,gain judicial justice,guarantee the market credit and promote economic development.