Research On The Validity Of Collateral Transfer

Guarantee system is an important engine of modern economic development, which will contribute to the transfer of production and subsistence between strange body, as well as regulate supply and demand, such as funds and equipments. Mortgage system, initially appears in Rome law, is known as "King of the guarantee", mainly because the setting of mortgage takes into account the exchange value and use value at the same time, which will be truly conducive to make the best use of everything.The transfer of collateral performs a vital role in mortgage system, while this is relatively banned in our current law, which hinders the development of mortgage system. Based on a comprehensive analysis of laws related to the transfer of collateral, especially the provisions in article191of "Property Law", combining relevant overseas legislation experience for reference, the author will put forward a proposal for the system perfection.The article can be divided into five parts:The first part are considerations summarized from two typical cases, both of which are related to the validity of collateral transfer, and came into being before and after the birth of "Property Law", for this reason they are typical.The second part tidies up the law related to the transfer of collateral. The regulations from the "Civil Law Opinions" to "Guarantee Law", from "Guarantee Law Interpretation" to "Property Law" span several decades, and have experienced the reform of economic structure, while the control to the validity of collateral transfer changed from severely restriction to relevant freedom, and then reverted to severely restriction. What exactly we should call this transformation, evolution of negation of negation system, or the resurgence of planning and restriction management? The author will make an thorough study.In the third part, this thesis will analysis and query the article191of "Property Law" from four perspectives, which are "whether mortgagor transfer collateral requires mortgagee’s consent","the subrogation of collateral covers transfer price or not","how to understand mortgagee’s subrogation","make a thorough inquiry on the real meaning of non-negotiation’ The author deems the crux of the matter is mediation and guidance instead of strictly restriction, or the legislation will be separated from our life.The fouth part analyzes the mode selection of profits preservation when transferring collaterals. This thesis studies the chase protection mode and subrogation protection mode comparatively, and figures out that no matter which perspective we choose, legal logic or practical consequences, subrogation and chase rights cannot be compatible, that is to say, mortgagee will not get double guarantee due to the transfer of collateral.In the fifth part, based on the above analysis, the author make an assumption about how to construct the system of the validity of collateral transfer. Therefore, putting forward the ideas of fully respect the mortgagor’s right of disposal, property nature of mortgage, balance the conflict of interests between mortgagor, mortgagee and assignee. The author also points out we should give priority to chase rights of real estate mortgage, allow the mortgagor transferring collateral freely, moreover endow assignee with purge rights, subrogation and substitution payment, when we reconstruct the system of real estate collateral transfer.The author believes that in order to protect mortgagee’s obligatory rights, we should take protective measures in its circulation, ensure collateral turning from employment inefficiently to utilization efficiently, therefore benefit mortgagor, mortgagee and assignee, instead of hindering the collateral transfer.