On The Perfection Of The Chinese Floating Mortgage

Floating mortgage was formed in the British of the1870s. Since enterprises were expand rapidly and the financing demand were exuberant at that time, the UK case law has been established this mortgage form, based on the needs of reality, in a series of judgments. With China’s reform and opening up and the rapid economic development, enterprises have been badly in need of large amounts of funds to expand production and sales. Many small and medium enterprises have difficulty in the traditional fixed mortgage financing mode to obtain funds due to their asset structure. In order to offer the market principal part more ways of secured financing, our "property law" has established floating mortgage system. In response to the needs of society, contributing to the financing of small and medium-sized enterprises, the floating mortgage system of "Property law" have very important sense, but the "property law" concerned regulation is simple, supporting system not perfect and a lot of problems in the theory and practice.The paper starts from the historical origin of floating mortgage system, examining the relevant regional and national legislation, using the method of value analysis. The floating mortgage system has been given a complete meaning of definition and the characteristics were analyzed in detail. Through the system value of weighing the pros and cons, the nature of floating mortgage system can be seen more clearly. The central content of the article is to improve China’s floating mortgage system, referring to the relevant national and regional legislation on the basis of our country, putting forward to perfect the floating mortgage system of China.Besides the foreword and conclusion, the body of the paper consists of three parts.The first part is the overview of floating mortgage. Floating mortgage system was produced in order to meet the needs of rapid development of British capitalism, because the traditional ways of securities were hard to meet the requirement of corporate financing situation, The British judges creatively have approved that enterprises can use now and future property as mortgage, and through the case in practice gradually established in the Floating mortgage. Floating mortgage refers to people in their current or after-acquired all or part of the property set, their remains occupied, used, and free to dispose of the mortgaged property in regular business operations, the debt expires not repaid or agreed upon the realization of mortgage situation, the mortgagee may priority of mortgage. With the fixed charge contrast, pointed out that the floating mortgage features include:mortgage freedom right of disposition of the mortgaged property, floating, conditions, implement methods such as the diversity of characteristics.Papers from the mortgagor, mortgagee, mortgage, third of these four aspects, pointed out that the floating mortgage has elevated the mortgage financing capacity, reduce the mortgagee and the implementation of cost control, and give full play to turn material resources to good account value, reduce the hired hand, ordinary creditors interests damage value. At the same time, pointed out that the floating mortgage in mortgage of property, easy to cause monopoly mortgage abuse of dispositions and the risk is relatively large, the abuse of the system. Study on floating mortgage’s succession and development are briefly introduced in this paper, the United States, Japan were summarized, Scotland and China’s floating mortgage system.The second part is about the setting and effect of the floating mortgage. China’s floating mortgage in the setting of extensive subject has set, the mortgaged property only to the extent of four types of movable property and the secured creditor’s rights is not limited and so on. Study on China’s floating mortgage system effectiveness are analyzed, discussed our country floating mortgage rights of disposition, floating mortgage and the crystallization of floating mortgage recourse constraints and other content, and to our country the floating mortgage rights of way to compare the way be discussed.The third part discusses the improvement of China’s floating charge system. China’s floating mortgage system still have many problems, including the legislative value orientation deviation, the scope of mortgaged property too narrow, without the receiver system and supporting system not perfect and so on. Aiming at these problems, to learn from other countries and regions the legislative basis, the paper puts forward the corresponding measures of improvement. floating mortgage setting body should be restricted to the enterprise, a moderate expansion of the scope of the mortgaged property, recognition of flow against the contract validity, determination the floating mortgage and guarantee right and unsecured creditors survival time position, introduction of the receiver system, through the relevant Judicial Interpretations and constituting Special law.