The System Of Transfer Of Mortgaged Real Property

From Roman law to modern law, real estate mortgage in guarantee system is of great importance in economic life and to be "King of Guarantee", in that not only fully meets the need of the mortgage but also frees the mortgagor from transferring the possession of real estate. However, every coin has two sides, disadvantage emerge following advantages. Real estate mortgagees fail to possess the collateral but merely obtain value realization right, Moreover, in judicial practice there are plenty of suits resulted form the mortgagor transferring the mortgaged property without the consent of mortgagee, especially in the situation of the mortgage in real estate in which the buyer making bold to transferring the mortgaged house. Therefore it is of great instructive significance to have a deep research into the system of the transfer of mortgaged real property for the judicial practice.Nevertheless, the relevant laws and regulations in China are far from rational concerning the transfer of the collateral, and the newly enacted Property Law makes little improvement. This thesis explores the current system design in China, reviews those in Germany, France, Japan and Taiwan Region of China, and makes comparisons in regulations, constitutive elements, legal impact as well as benefit balance, hoping to find a more appropriate solution and make certain contributions to the consummate legislation in China. This thesis consists of four chapters besides Introduction and Conclusion.The first chapter, the author introduced one cases of real estate collateral transfer, to highlight this theme and figure out the importance of the system of transfer of mortgaged real property.The second chapter is an observation form a comparison perspective and constitutes the pivot of this thesis. The comparison methodology is not confined within legislations in different countries and regions, instead, it focuses on the commonness and discrepancies. As for the commonness, the author figures out that almost all the legislations in the involved countries acknowledge the force of recourse of mortgage and make complementary relief concerning balance of benefits among the parties. The common aforesaid relief manner lies in the law of obligation, i.e. liability incurred by defects of right and subrogation liquidation. As for the discrepancies, the civil laws in Germany and Taiwan Region of China merely rest on relief in the law of obligation with no further stipulation in property law. the civil laws in France and Japan additionally has elimination right, i.e. claim of eliminating mortgage, and Japan goes further in cost liquidation by the transferee system and subrogation system.The third chapter at first it summarizes and comments on the provisions on the transfer of mortgaged real property in the civil legislation of different levels. Then it makes an analysis of current legal solution in China that restriction of transfer violates the essential concept, infracts balance of benefits among the parties and then causes internal conflicts in the legal system. Furthermore, the current legal solution can hardly find legitimate backup out of the value concept of mortgage, transaction notion and economy efficiency.The forth chapter is the comment on transfer of mortgaged real property in China's real right legislation. proposes five legislation suggestions based on the above analysis, which include allowing real collateral transfer, establishing force of recourse, introducing liability incurred by defects of right, confirming subrogation liquidation of assignee and strengthening registration system.