Interpretation And Comment On The Mortgage Transfer System

The mortgage system can reach the full value of the objects, which is the mostimportant guarantee mechanism and has played an important role in the developmentof market economy. Especially, the provisions on mortgage transfer system has amaterial effect on the interests balance and coordination among the disposal rights tothe mortgagor, the mortgage rights to the mortgagee and the trade security to thebuyer. To protect the interests of the mortgagee, the laws limit the mortgage transferall the time. Therefore, most scholars consider that the mortgage transfer system ofour country pay too much attention to protect the mortgagee, while lack of themechanism to protect the mortgager and the buyer. This paper sort out the existinglaws and rules on this area and the judicial practice to declare the existing systemconforms to the current circumstance. In addition, revise the laws will not be alwaysthe right answer, which just will make the authority of law lose. Therefore, the mainpoint of this paper is to reasonably and logically explain and apply the laws to reachthe target of balance and coordination of the relationship among three parties.In article1, I submit two main questions on the mortgage system:a) whether the mortgage can be transferred freely, and the nature andeffectiveness of the transfer;b) the legal status of three parties once the transfer of mortgage, and how tocoordinate and balance the interests of these three parties. The following contents areextended around these two questions. In article2, the main contents is the necessary of limits to the transfer ofmortgage, analyze and criticize the reasons why the scholars stands on the freetransfer, believe that in the current legal system, there must be some limits to thetransfer to protect the guarantee system and trade security, which can expedite thecirculate of the mortgage, and make the full value of the mortgage.In article3, explain the provisions of the legal effectiveness after the transfer.Discuss the effectiveness of contracts and juristic act of real right respectively.In article4, the main contents is to get a full comments on current laws bydiscussing the interests conflicts caused by the transfer among three parties, and howthe laws of our country remedy this injuries to three parties, commenting andanalyzing whether is appropriate to introduce the foreign system.Expect sorting out the whole legal system, I also sort the relevant judgments andintegrate it into each parts of my paper, to draw a full picture of transfer system.