Transfer Of Collateral And Restrictions

The most prominent purpose of property law is to make full use of things, mortgage, asthe most typical a security interest, is bound to bear the mission that is" to make full use ofthings ". Establishment of a mortgage does not require the mortgagor to transfer possession ofthe collateral, the mortgagor can still continue to occupy the mortgaged property after theestablishment of the mortgagee, which makes mortgagor has more advantages in "to make fulluse of things ", compared to the pledge and lien. Civil law, however, bear the autonomy,protection of transaction security, balance of interests and a series of equally importantmission. The establishment of the mortgage does not need to transfer the possession ofproperties, which makes mortgagor still has the opportunity to sell the collateral to a thirdassignee after the establishment of the mortgage, which puts the mortgagee in the futureinconvenience. Therefore, do not allow the mortgagor to transfer the mortgaged propertyhampers the principle to make full use of things; allow the transfer of collateral, on the otherhand, will cause a trading security threats. Thus allowing the transfer of collateral, and thendesign a system to balance the interests among mortgagee, mortgagor as well as collateralassignee, and maintain good trade order, is the right idea. On the research of the basic theoryof mortgage collateral, this paper attempts to analysis the interest, which is in the process ofcollateral transfer, between mortgagor, the mortgagee and the third assignee, then propose myown bold idea on the transfer of collateral system.This article is divided into four main parts: The first chapter discusses the basicproblems of the mortgage and collateral transfer. Discussed the nature of the mortgage, thetype of collateral, and then put the analysis focus on the all kinds of theories around whetherthe transfer of collateral should be limited or be allowed free, and ultimately make my ownidea that the mortgagor should be given the right of transfer free. In the second chapter, thearticle analyzes the legal effect of allow the mortgagor to transfer the mortgaged property free,comment the kinds of view on how to balance the interest between the three parties in thetransfer of the collateral. In the third chapter, the article introduces the design of the foreign legal system on the transfer of collateral. Introduces the transfer of collateral legal system inCivil law in France, Germany, Japan, and China’s Taiwan region and in common law, exceptto get revelation on the legal system of China. The fourth chapter discusses China’s collateraltransfer of the legal system. In this part, firstly, the article introduce the process of the transferof collateral system in China’s legal system, consider that the "property law" does not meetthe legal provisions of the transfer of collateral and is not in line with the economic situation.Then, based on the preceding theoretical study of the collateral transfer legal system andforeign reference, the article makes my own claim on the transfer of the legal relationship ofcollateral.On the basis of extensive research on related works, materials, papers, usingcomparative methods, dialectical reference to the legislation at home and abroad andacademics discussed, using the method of combining theoretical analysis and empiricalanalysis, the article discussed the relevant legal framework and concluded that the mortgagorshould be allowed to transfer the mortgaged property free, and confirm the mortgagee torecover and effect. And the article confirms that the assignee for the collateral sit in thebuyer’s position in a contract legal relationship, in the transfer of collateral relationshipmortgagor shall ensure that the collateral assignee to know the defects of the subject matter.When the collateral being chased assignee can chose the best obligation method in warrantyclaims,and collateral, the transferee is the transferee of the collateral, and collateral assigneethe right to warranty claims, pay off the debt for mortgagor, pay off the price of the collateraland right of exclusion to protect his own right.