Discuss The Validity Of The Collateral Transfer

Market economy society is aimed at seeking profit maximization, and the target of thecurrent “Jus rerem " is" the best use ". Most countries’ laws provide, property not only can beset mortgage to guarantee debt, even can sequentially be set usufructuary or directly betransferred to the third party. However, the transfer of the collateral relate to mortgagor’s rightof disposing, mortgagee’s right to mortgage and transferee’s ownership.Therefore, when wedesign the system of collateral transfer and resolve legal disputes of the collateral transfer, weshould take the balance of interests among the three party into account. Although our lawshave made specific provisions, especially the current “Jus rerem " Section191, the disputesin the judicial practice continue, or even controversy about understanding of the law barsgenerates. Thus, before the promulgation of the judicial interpretation of jus rerem, theauthor makes theoretical analysis of “Jus rerem " Section191on the basis of positive law, inorder to solve the problems encountered in the application of the law. This paper is dividedinto four parts,and the idea of the article is to introduce questions-to integrate the provisions-to analyze the legal implications and to solve problem.The first part, the present case leads to the problem.Scholars and judges dispute theeffectiveness of behavior of the collateral transfer,and actually make controversy aboutunderstanding of the provisions. To solve the validity of the collateral transfer depends on ourrules on the collateral transfer, especially the understanding and application of the existing“Jus rerem " Section191.The second part, it explains the evolution of our system on the transfer of collateral.From “the opinion of the Supreme People’s Court on the implementation of ‘GeneralPrinciples of the Civil Law ‘(Trial)”(hereinafter referred to as " General Principles of Civilviews "),”Guarantee Law” and its judicial interpretation to " Jus rerem ",they probablyprovide collateral assignment,and the author explains its specific content in accordance withthe relevant ordinance.The third part, this section is the important part of the article. It mainly makes theoreticalanalysis of “Jus rerem "Section191for the application of the law. The author analyze fromthis five aspects-mortgagor’s right of disposing, chase of right to mortgagee, subrogation of the transfer price, the assignee’s polyester ex-rights and chattel mortgage.Finally concludesthe summary about her own understanding of “Jus rerem " Section191.The fourth part, this section mainly answers the question introduced by the case in thefirst part, and the author puts forward her own opinions for handling the case.