Research On The Legal Characteristic Of “Pledge” Of Commerical House Lease

Financing difficulty has become a most important obstacle to the prosperous development of small and medium enterprises with limited resources. Therefore, some businessmen put their business place----commercial house lease at mortgage to acquire financing. But Principal of statutory real right makes it a challenge to the force of law of pledge of leased property. To analyze Principal of statutory real right has its rigidness, but its logical correctness and historical reasonableness get us hardly to leap over the “red line”. Since commercial house lease has the value of guarantee in theory, we should try our best to realize its value to serve the real economy. To achieve this goal, the author try to quote void civil act transfer system universally acknowledged by continent law system countries and abstract valid substitution act from the components of transfer system----alienation guarantee in lease through analysis, and then prove alienation guarantee in lease system from the sides of validness and practicability. This paper includes four parts except introduction.The first part mainly brings up with the legal characteristic of commercial house lease at mortgage. At first, relating connotation of the system is identified and the differences between commercial house lease at mortgage and dwelling house lease, between rent right and rent right mortgage both of which contributes to the scope of this paper. Then the rise and model of rent right mortgage is described so as to know the current situation of rent right mortgage. And then analysis of practical meaning and adaptability of rent right mortgage is made from theoretical and practical sides. However, from the law sides, force of rent right mortgage cannot stand because of Real Statutory Principle, and juridical practice is not admitted, both of which causes the problems.The second part deny the property character of commercial house lease at mortgage. Since businessmen create rent right mortgage, and then we can start from the pledge rights over rights, pledge on property rights, and definite right mortgage rule. Furthermore, through analyzing character of rent right, a perceptual understanding of whether rent right can mortgage is made. As regard to the question raised at first part, we think over Real Statutory and find the principle itself exist rigidness, but it has no logical conflict with autonomy of will, therefore, Real Statutory itself cannot be denied easily. As for the above, rent right as subject of right mortgage will at last declare losing the force in property side because of not bypassing Real Statutory gap.The third part brings in null civil force change system validity transform system of the void civil acts. As overcoming the obstacle of Real Statutory is impossible, the author tries to bring in null civil act force change system in order to change the null pledge rights over rights act into effective guarantee act. Theory basis of null civil act force change system is from legal act system. Pursuit of value of legal act supports the whole change system. Alas, this system has no definite legal basis, but only arguments in scholars. Therefore, it is necessary to illustrate its value and components. Through analyzing the substitute behavior element, we can roughly bring out the change direction----lease right transferring and guarantee, but whether this substitute behavior is reasonable still needs demonstration.The forth part is mainly the justification of rent right transferring and guarantee system. Alienation guarantee in lease always has controversy in our country, because current guarantee system make it useless. Although our nation’s guarantee system chattel mortgage and pledge of rights take place of some functions of transferring guarantee, the former have natural disadvantages in both adaptable subjects and change of real right. Rent right as a special right can be included by transferring guarantee, both from effectiveness and adaptability, guarantee can be made in this way. Although there is the obstacle of legal application in jurisdiction practice, after series of system construction, we can at least give force to rent right guarantee in legal principle side.