In The Interests Of The Mortgaged Property Transfer Balance And Rule Choice

Mortgage is created on the purpose of satisfying great demand for capital and making full use of security by legislator with the economic development. Mortgagor endows mortgagee with hypotheca in according to mortgagor’s security, guaranteeing creditor’s right with his priority of claim for security for thing and not being deprived of mortgagor’s ownership for mortgaged real estate and still being able to create value by mortgaged thing to fully use the social resources, which makes security guarantee have unique charm compared with other secured forms. In modern society, security guarantee is the most important financing initiative. Hence security guarantee is chosen by the majority of people. The alienation of mortgage, the further extension for the mortgage system, considers the secure transaction of the third party transferee with mortgagor and mortgagee’together, and gives the third party transferee a chance to take part in the benefit distribution protected by legislation. Hence, the alienation of mortgage system has complexity. Provided that the alienation of mortgage system is not complete, it’s likely to cause losses and damages to one or more parties’interests and brings the problem of balancing and protecting the interest among mortgagor, mortgagee and transferee.The alienation of mortgage system in civil law countries all gives emphasis to the balance and protection of parties’interest. Above all, whether mortgagor having the right to dispose security directly influences the interest of mortgagor. Secondly, how to protect the interests of mortgagor against losses and damages on condition that mortgagee shall not directly own and dominate security. Thirdly, whether the alienation of mortgage is valid and may be traced by mortgagee may directly influence the interests of transferee. Hereon, the alienation of mortgage system in civil law countries usually covers and includes following aspects:1. Security shall be restricted or not.2. Mortgagee shall be endowed with tracing right or not.3. How to protect the interest of transferee.The history of security guarantee system in our country is quite short. Our law did not admit the real estate in private for a long time until the first provision about the alienation of mortgage was created in1988. So far there has been four provisions about alienation of mortgage in our country, which are the115th clause in General Rule of the Civil Law of The People’s Republic of China, the49th clause in Guarantee Law, the67th clause in Guarantee Law Explanation and the191st clause in The Real Right Law respectively. Judging from our legislation, its words are too common to be professional sand too simple and rough to understand clearly, operability is too hard to be carried out by judicial branch and administration department and substantive right is too liable to mortgagor to give just protection to the interest of mortgagor and transferee, which is widely questioned by academic circle and judicial circle. Judging from the application of our legislation, the court’s different explanation on the legislation may influence the interest of party. Hence, this dissertation mainly studies the191st clause in The Real Right Law.1. The feature of the alienation of mortgage. Combined with the selected case from the magic weapon of Peking University, herein will normatively discuss and analyze the four provisions about the alienation of mortgage, and also the connection among themselves and clear and definite validity.2. The interests balance among the alienation of mortgage. Combined with the191st clause in The Real Right Law, this part will discuss the substantial rights’conflictions and interest entanglements among the three parties in alienation of mortgage system from the perspective of mortgagor’s right of disposing freely, mortgagee’s claim right protection and the third party’s secure transaction.3. The legislative modes among countries about balancing the interest when security is transferred to party. This part tries to settle the problem of the balance and protection of interest among the three parties in alienation of mortgage. The main legislative modes among countries to balance the interest among the three parties include hypotheca tracing regulation, repay by subrogation regulation, subrogation of mortgage regulation, elimination regulation and so on.4. The improvement of alienation of mortgage system in our country. Combined with the development history and lawmaking thought of alienation of mortgage system and system of The Real Right Law in our country, this part mainly explain and improve the legislation about alienation of mortgage on the basis of discussion above about the legislation modes of civil law countries.