The Interests Measurement Of The Collateral Transfer

In the market-oriented economic society, the value of the property to maximize is the main goal of the Market subjects. The preservation and value-added of the objects need Content circulation to achieve, appropriate standards system can promote the optimal allocation of social resources, give full play to the utilities. In the mortgage system, the transfer of the mortgaged property system is such a standard. But in the transfer of the mortgaged property, that would involve several aspects of the interest relations, the realization of the Secured claims, mortgage financing needs and vendee interest safeguard, mortgage and trading interests between interests etc. In such a complex chain, how to balance the interests of all parties reasonable and effectively, and realize social value pursuit, is the starting point of the Collateral transfer system to consider. the interests measurement is the core of this article, respectively, use comparison method, value analysis and logical reasoning and other methods., from a different perspective analysis this problem, look forward to more completely express the author's thoughts and views.In the first part, the theory of interests measurement was discussed. First, this article analyzes the value meaning of the interests measurement. Second, the theory's position in modern legislation was discussed. Finally, stated focus on the role of this theory in the transfer of collateral, and the design of the system should follow the premise of the analysis, focused on the value and effectiveness of the order value, this material purpose of the full use of the system coincide. In situations of conflict of interest, the parties should be reasonable and appropriate distribution of benefits system adjustments, to achieve a balanced state of harmony, eventually form a good order atmosphere.In the second part, the mortgaged property transfer system was Comparative Law. the typical representative of the Civil law, the German civil law model, French model and the Japanese model were compared and analyzed in this part. Through the comparison, we can see the German mode stressed the mortgagee benefit protection on mortgage transfer, mortgagee enjoy the "one ticket veto" power. The French civil code expand and improve this part, propose subrogation system and the polyester subrogation ex system, balance the interests between the parties properly. However, these systems can not be ignored there are also drawbacks, subrogation system easy to make buyer in overburdened situation, the mortgagee may enjoy the protection, a double from the mortgage's the chase force and the buyer subrogation guarantee, the polyester subrogation ex system gives the buyer the right to eliminate hypothec burden, but the system is given the mortgagee overweight increased pressure in the burden, the request cannot be very good auction claims to fully realize that, its must accept auction the consequences of failure. Japan civil code is relatively unique, the "double socialist" also contains the content of Things previous generations-bit system and mortgage's chase force, this gives the mortgagee interests in very good protection. But its legislative cases also receives a lot of questions, many scholars believe that such provisions will bring logically confusion. In addition, Japan civil code put the transfer price into Things previous generations-bit system is that one of the distinctive features of the legislation. Through the analysis of the evolution of the legislation of our country, we can see that the change of the focus of benefit protection. The transfer of the mortgaged property must pass the consent of the mortgagee, otherwise is invalid, and introduce the subrogation system in foreign legislation, and eased the mortgaged property transfer constraints. And the property law inherit some contents of the previous several laws, but also has some obvious defects, such as the lack of mortgage chase and force.The third part discusses two legislation mode and the interests of all parties protection system, throughout countries and districts'legislation, looking for legislation in the corresponding system for all parties.the mortgagee's chase and force, Things previous generations-bit system, Subrogation system, Di ex system and so on, Meanwhile, relates to China's legislation and analyze and compare relevant legislation of our country. Through the above analysis, this paper thinks, By comparing two legislation mode, the author choice the Mortgage's chase force for core legislation mode. In this mode, the mortgagor may free transfer the collateral, the buyer may free choice transaction object, accord to Mortgage's chase force, mortgagees may protect claims. The fourth part puts forward some legislative thinking. First, from the level of the value, what we can to do balance the interest between the parties, First, the Mortgage's chase force for core legislation mode should be established, this is the essential requirement of the mortgage, Also advanced legislation in China's legislation into line with international requirements, Of course, the establishment of the Mortgage's chase force remove the obstacles of the free flow of collateral. Finally, to improve the registration system, to improve the registration system can well protect the rights between the parties, transparency and transaction security.