Theory Of The Infringement Of Mortgage Right Infringement Responsibility

Carrying the funtion of debt repayment guarantee,the mortgage essentially exists asthe protecting means and method of the creditor’s right,but as a kind of right,the mortgageitself also needs protecting and reliefing from law,because a right without relief is not thereal right.This paper chooses the tort liability from the system of protection and reliefwhen mortgage is infringed,mainly analyzes the elements of tort liability and legal effectof tort liability as well as the relationship between tor liability for infringement onmortgage and other relief means.This dissertation is divided into three parts and contains about more than thirtythousand words,the first part deals with the theoretical foundation about tort liability forinfringement on mortgage,respectively discusses from the points of mortgage and tortliability,in order to lay necessary foundation for further analysis of tort liability forinfringement on mortgage.The second part,emphasis and focal point of this papei,exporesthe achivement of tort liability for infringement on mortgage,including the elements andlegal effect about tort liability for infringement on mortgage.In the legal context ofChina,the tor liability for infringement on mortgage contains two protection methods fromprivate law,they are the claim based on property rights and the claim on damages.Thisdissertation carries out unified analysis about the elements of tort liability for infringementon mortgage,about judgmentght of mortgage infringement,the paper insists that under thefollowing circumstances,mortgage is in the state of being infringed:the decrease of valueof collateral and interference in the legal status of mortgagee as well as hinderingimplement of mortgage,not requiring lack of guarantee power.The part of tort elementcombings different types of torts.About the element of causal relationship,tort liability forinfringement on mortgage can adopt related theory about tor liability for infringement onownership,but when a third subject infringes on mortgage,the behavior of mortgagor mayalso contibutes to the infringement of mortgage.Concerning subjective fault,whenmortgagee claims recovery of collateral’s value,tortfeasor’s subjective fault is essentialelement.The legal effect is respectively analysed according to the former combing about types of torts.The last part,this dissertation holds that tort liability for infringement onmortgage and the right to preservationof mortgage can both constitute when infringementcomes from mortgage,and when a third subject infringes mortgage,the tor liability andright of subrogation can also both constitute,but mortgagee only could choose one ofthem.