Research On The Legal Force Of Collateral Transfer

Hypothec in security right a very important role, but the problem is that the mortgaged property transfer problems in more complex mortgage topic, due to transfer the mortgaged property will make a mortgagor and a mortgagee, pawn alienee disposition, security right, title conflict between, affect the market trade safety and efficiency, therefore, how to cooperate with the spirit of the property law, protection from three aspects:the interests, and to establish a set of effective the mortgaged property transfer system, is worth studying. This paper USES the many kinds of analysis method, based on the mortgaged property transfer of the relevant legislation in our country, the contrast of changes of foreign laws and legal principle, spirit, through comparing discovers our country "matter right law" relative to the guaranty "interpretation before the mortgaged property transfer problems appeared conservative and retrogression tendency. Analysis the mortgaged property transfer free limitations to the mortgagor and the mortgagee, hence the transferee brought about by the legal consequences, combining the current supporting system, and puts forward should give the mortgaged property transfer liberal point of view, and suggest perfecting deposited and registration system.This paper except preface and ending is divided into three chapters:The first chapter mainly describes the mortgaged property transfer restrictions and freedom. This paper lists the mortgaged property transfer main three legislative spirit, namely content referring to a socialist, the thing on chasing and force doctrine, double socialism with the reality of our country, we analyzed and compared three legislative spirit differences, and finally puts forward that we should establish mortgage chase in our country and force system were suggested. The core value of the real rights for security is to restrict the exchange value of the security collateral to protect the creditor purpose, from the mortgage right Angle, no matter how the mortgaged property on the market, the circulation of hypothec person, the key lies in its hypothec can still attached to "the thing", obtain preferred payments from the interest, as to how changeable the mortgaged property ownership, is not the key concern them, namely, so China’s laws on the strict limits of the mortgaged property is definitely at the shadow and lose the substance to suspicion, also violated "the docking" the real right of the spirit.Chapter 2 is the mortgaged property transfer the effectiveness of the contract, according to the freedom of contract of civil law spirit, compare other countries and regions, it is concluded that the relevant legislation the mortgaged property transfer contract shall not to agree, inform, notification and so on conditions for contract become effective elements from the conclusion, the purpose of setting up the mortgagee and principle in the market function view, should try to maintain the "object" flow the effectiveness of the contract, cancel the restrictionsThe third chapter is mainly directed against the above analysis, combined with actual situation in China, and put forward some opinions and Suggestions. Such as advice give mortgagor transfers mortgaged property of freedom, admit the thing on chase and force, establishing hypothec the thing on chasing and content of coexistence of referring to a limit movables pawn mode, scope, protect the mortgaged property, the assignee is also put forward some Suggestions of complete set system, such as to improve the registration system and deposited system. Tenet that follow the mortgage right itself properties, reconstruct the value orientation of the mortgage right system, comply with the inherent logic of civil law, try to balance the corelation between interests, safeguard fair principle, and promote economic development.