On The Rules Of Trancfer Of Mortgaged Realty

According to the basic principles of the Property Law, the specificrights of ownership include the right of possession, use, revenue anddisposition. In mortgage of realty, the mortgagor does not have to transferthe possession of the object to the mortgagee, so there is no doubt that themortgagor can still possess and use the realty by will as before. However,as for the right of disposition, the academics hold different views, and thelegislation about this issue varies a lot in different nations. Therefore, thispaper will focus on the rules of transfer of mortgaged realty, elaborate thelegislation on related rules in Chinese civil law and point out that theconcerning legislation is not perfect enough. Then, the author illustrates thelegal nature of the mortgage in logical aspect and expounds the relationshipbetween three parties in conveyance of the mortgaged realty. On thefoundation of the judicial practice and legal system, the paper gives somesuggestions on further perfection of the relationship among parties inmortgaged realty conveyance. Specifically, except for the part ofintroduction and conclusion, there are four sections in this paper.The first section is a summarization of related legislation in China. Atfirst it has a brief introduction of the related rules in civil statutes in the pasttime. Then, it presents the related rules in the concerning Chinese civil lawsystem and comments on the problems in their application.The second section is an analysis on the logical foundation of allowingthe transfer of mortgaged realty on the basis of legal theories. Firstly, itdefines mortgage as a kind of property right. Secondly, it explicates thepursuance force of mortgage through the explanation of the relationbetween the force of removal obstacles and the pursuance force. Thirdly, itconcludes that the debt can be paid off, even if the collateral has beentransferred to the third person. However, the pursuance force can work only if there is excellent registration system. This section is the most significantpart in this paper, so it provides the basic direction for how to protect therights of the three parties and how to balance the interests among them.The third section is an analysis of protection and balance of the threeparties in the transfer of mortgaged realty. At the beginning of this section,it interprets the relationship among the three parties in transfer ofmortgaged realty. Then, it points out that the pursuance force can be brokenin some circumstances for the target of interests balance. It lists severalsorts of rules in civil law related with this issue, involving guaranteeliability about blemish of right, subrogation for liquidation, subrogation onthe pay for the realty and the purging right, explains their functions one byone.The forth section proposes five legislation suggestions based on theabove analysis. Before elaborating the suggestions, the author firstly statestwo fundamental principles about this issue. One is that mortgage is a kindof property right, while another is that every party in legal relationship havethe right to behave by will. The specific suggestions include explicitlyrecognition of the pursuance force, introduction of guarantee liability aboutblemish of right, approval of the buyer’s subrogation for liquidation. Itreaffirms that the registration system should be revised, so as to preventfurther problems in application.