The Protection Of Buyers’ Benefit In Mortgage Transfer

Mortgage system is a very important guarantee system, which plays a decisive role in the economic activity in the market. In practice, the mortgage system mainly involves the mortgage transfer problem of real estate and chattel. Transfer of mortgage is an action that the mortgagor gives the mortgage ownership to the third person, which is based on their own intention. In other words, the mortgagor can have the legally dispose of the mortgage. In the process of the transfer of mortgage, it will involve the interests of multiple parties. How to protect the interests of the mortgagee and the dispose of the ownership of the mortgagor as well as the transaction security of the buyer needs the legal system.At present, the design of China’s “property law” 191 st article on mortgage transfer system is not reasonable. This paper intends to present the current situation towards the mortgage system of our country, and the analysis of transfer system design system about the continental law system countries, like Germany, France and Japan. The author hopes that it will give some inspiration about protecting the buyer’s interests. This paper is divided into three sections.The first section is an analysis on the current problems about mortgage transfer system from China’s “property law” 191 st article. In China, the transfer mode of the mortgage is restricted mode that it places restrictions on the transfer of the mortgage. Although there are some reasonable place, but limiting the transfer is not only unnecessary but also there are a lot of disadvantages. The subrogation for liquidation has some drawbacks. The scope of the system is limited. And in China’s “property law” 191 st article, the attitude towards it is not very clear. What’s more, there is no specific provision of relief or protection mechanisms about the buyer’s interests’ protection in the chattel mortgage.The second section is the introduction about transfer system design system of the continental law system countries. French has eliminated system. Japan has not only eliminated system, but also a unique system design patterns that it admits both right of recourse and right of subrogation. Germany allows transfer and circulation of mortgage freely, and it has perfect mortgage registration publicity system.The third section is the suggestions on how to protect the buyers’ Interests in the transfer of mortgage, such as lifting restrictions on the transfer of mortgage by analyzing the development prospect, legislative value and the current cases. The unified real estate registration is very important to protect the buyer. There is no need to introduce eliminated system through the analysis about its causes as well as the operation, different property change patterns and legal traditions. Moreover, it’s very important to implement the unified real estate registration concretely. Besides, the system design that the mortgagee has to discharge the right of subrogation, before exercising the right of recourse is practicable.