On The Effectiveness Of The Transfer Of Mortgage Without The Consent Of Mortgagee

This paper aims to discuss the legal consequences of violating the second paragraph of Article191"Property Law"(hereinafter called "the Article"). Nowadays, in the judicial practice and academic field,the Article has been blurred as far as possible, with different opinions on methods and paths. This paper methodologically reviews some commonly used judgments and analysis methods.The first part of this paper defines some basic definitions of the topic and research methods, and points out the controversies in judicial practice based on a large number of judicial cases.The second part of this paper discusses the nature of the Article. Logically, if we want to confirm the effectiveness of the act,we have to confirm its nature. If it is mandatory, there exists the problem that whether it belongs to the effective or management provision,, Meanwhile, under the situation of violating the mandatory provision, we need further discuss its effect.In the third part, after the clarification of act of liability and disposition, this paper discusses the influence that the Article makes on the two different kinds of acts, concluding that act of liability is not under the regulation of the Article.And in the fourth part, by analyzing the potential interests under the Article from the prospective of interest-balancing, this paper tries to solve the contradiction among various ways of interpretation. However, there is no priority between the conclusions made by legislative interpretation and that aimed at reality. Therefore, the issue can not solved by interpretation.