On The Transfer And Limitation Of Mortgaged Immovable Property

Mortgage as one kind of real right of pledge, it played an important role in thecivil law of every country at all times. It can not only satisfy the personal needsbetween the mortgagee and the mortgagor, but also play a decisive role in the marketeconomy system. However, everything has two sides. In the transfer system ofmortgaged immovable property, the mortgagee doesn’t actually occupy the mortgagedproperty. So the mortgagor may transfer it to the transferee because of some personalreasons. At this time, it will involve several problems: Is the transfer between themortgagee and transferee effective? Can the transferee obtain the real estate propertyrights? If the transferee does it, how do we protect the mortgagee’s benefits? If thetransfer is invalid, then what should we do to relieve the transferee’s rights? For thesepoints, it provides specific measures our civil legislation, especially the “propertylaw”. But the designs are not reasonable. In view of this, through the comparing withand referring to the various legislations of the main civil law countries, the authormakes a systematical research on the system from the angles of theoretical analysis.Focus on two problems that the transfer of mortgaged immovable property should berestricted or not, and how to control the interest relationship among the mortgagee,the mortgagor and the transferee. In order to find the best way to solve the defects,and then improve the relevant legislations in our country. Specifically, there are two sections in the paper to discuss the system of thetransfer of mortgaged immovable property.The first part discusses whether the will of the mortgagee would limit the freetransfer of mortgaged immovable property. Firstly, introduce the relevant countries orregions on the free transfer of mortgaged immovable property. By the comparisonbetween the a number of major civil law countries and regions (including Germany,France, Switzerland, Taiwan of China and so on) on legislation and the theory ofexisting legislation in our country, the civil law countries are allowed to transfermortgaged immovable property, while in China it is still take the will of themortgagee to limit the free transfer of mortgaged immovable property. Finally,analysis the reasons of differences and harmfulness of China’s regulations, and thencome out of the view of this article from positive aspect and negative aspect. It is thatthe will of the mortgagee shouldn’t limit transfer of mortgaged immovable property.The second part deeply discusses how to balance the interests of the three parties.By introducing and comparing German mode, French mode, Japanese mode, weanalyze the structure of various legislative modes, and the advantages anddisadvantages of various balanced modes and the meaning of existence. Then we talkabout the balance of three party interests in legislation pattern, and analyze the lack ofthe relevant security system. In the end, deny the independence right system and thesubrogation system of transfer price. And then I put forward legislative suggestionsfurther more.