Brief Analysis On The Improvement Of Chinese Chattel Mortgage System

Our country's chattel mortgage system begins with the Security Law, and then has been further improved by the Judicial Interpretation of the Supreme People's Court on Some Issues Regarding the Application of Security Law (hereinafter referred to as Judicial Interpretation on Security Law) and Property Law which are enacted soon after the Security Law. However, those provisions are too principle and rough, and they hardly specify certain issues in judicial practice that need to be resolved. Therefore it's hard to say that our chattel mortgage system has established. In addition, there is uncompromising internal contradiction existing in the chattel mortgage system itself. Consequently, besides the affirmation of the positive role which our chattel mortgage system has played in promoting financing, safeguarding creditor's right etc, we should not ignore the system's impact on traditional property law system and various predicaments with which it confronts in practice. Apart from the introduction and conclusion, the whole paper consists three chapters:The first chapter is an overview of the chattel mortgage system, including two parts. The first part briefly states how chattel mortgage system has developed in every country and its legislative status, and comparatively analyzes the legislative advantage and disadvantage on chattel mortgage system in continental law system and common law system, which provide a comparative enlightenment for correctly evaluating our country's chattel mortgage system. The second part objectively reviews the value function and application predicaments of chattel mortgage system, which provides theoretical basis for correctly recognizing and tackling chattel mortgage problems in the following chapters.The second chapter is research on the main problems of chattel mortgage system, including three parts. This chapter analyzes the three most controversial issues currently among the scholars in every country—public summons of chattel mortgage right, transfer of chattel collaterals and effect of chattel mortgage right. By analyzing the current rules of each issue, it digs out the root of the problems and further explores more reasonable solutions.The third chapter is the improvement of our country's chattel mortgage system, including two parts. The first part reflects on the problems existing in our chattel mortgage system, based on the studies in the second of chapter of this paper. Those problems mainly shows up in the shortcoming of chattel mortgage public summons system, overbroad scope of chattel collaterals and the lack of rules of chattel mortgage right and pledge. By using legislative experience of other countries for reference and combining our country's legislative practice and trading tradition of chattel security, the second part puts forward suggestions on improvement as follows: first, we should unify the registration authorities, and properly introduce such systems in chattel mortgage public summons—imprints or markings system, purchase invoices endorsement system, property list system and notary system, and establish complete chattel mortgage public summons system; then, we should narrow down the scope of chattel mortgage collaterals, and exclude collaterals with small values and consumables; and last, we should make a distinction between registered and unregistered chattel mortgage right, and establish such effect rules: in case all the chattel mortgage rights to have been registered, the priorities shall be made according to the registration sequence; in case no chattel mortgage right to have been registered, the pledge shall constantly be cleared off prior to mortgage rights.