Study On The Rule Of Transferring The Pawn Of Real Estate

It is a crucial issue that how to make a balance within relative parties’ interests insituation of transaction of the collateral in system of right in rem and in institution ofproperty right. In accordance with the provision of article191of the Property Law ofPeople’s Republic of China (“the Property Law” hereinafter), this thesis would usesemantic interpretation rule and systematic interpretation rule to interpret theprovisions of article191and other relative regulations, and it focuses on three keyissues related with transaction of the collateral. In detail, the key points of this paperare as follows:The first part of the article would focus on the issue that whether the PropertyLaw has adopted the recourse-centric rule regarding the transaction of the collateral.At first, the paper would analyze the forming process of the recourse effect for thehypothec, then interpret relative regulations of the Property Law, and finally find outthe conflicts between the Property Law and the traditional theory and the reasonscause the conflicts.The second part of the article would analyze whether the Property Law establishes the system of eliminate and the system of subrogation on charges, proposethe operation mechanism of the system of eliminate and its core feature, and analyzethe system of subrogation on charges, thus making clear that whether these twosystems have been adopted by the Property Law.Based on the conclusions of the first part and the second part, the last part of thearticle would mainly discuss the legislation model of the Property Law regardingtowards the rule of transferring the collateral and analyze its rationality in the view ofthe nature of the hypothec, the efficient operation of the ownership mechanism in civillaw and the balance of relative parties’ interests.