Study On The Transferring Of Real Estate Pawn-focus On The Article191of The Property Law

The legislation about the transferring of the real estate pawn in China hasexperienced many changes: The Supreme People’s Court on the implementation of thecivil law of the people’s Republic opinion (Trial) published in1988, The GuaranteeLaw published in1995, The Supreme People’s Court on the application ofinterpretation of Guaranty Law of the people’s Republic’ issues published in2000, thepublishing of those three laws has reflected that the transferring of the real estatepawn has experienced a procession from a strict restriction to a gradual relaxation.However, the Article191st of The property Law published in2007regulated a newrule on the transferring of the real estate pawn.Obviously, this provision modified the earlier rules substantially, the legislativemode of the transferring of real estate pawn is back to the earliest restrictionist. Thepurpose of The Property Law is very obvious, it limits the freedom of real estate pawnmainly in order to avoid damaging the mortgagee’s interests. But there are severalloopholes in the Article191st of this law, so the author tries to discuss how to dealwith the problems that are not clearly regulated in the Article191st of The PropertyLaw.Firstly, what are the effects of the actions of transferring of immovable estatecollateral without mortgagee’s consent? The author thinks that this behavior is not an absolute invalid or absolute effective behavior, it belongs to the legal behaviors whichare relatively ineffective.Secondly, if the effects of immovable property collateral’s disposition will effectthe contracts? We believe that as long as the transferring contract in accordance withthe requirements of validity of contract, the contract is a valid contract, it won’t haveany effect on the transferring behavior.Thirdly, if the mortgagor refuses to pay in advance or deposit, but the mortgageehas consent the transferring before, how to deal with the situation? Many scholars putforward that the mortgagee can realize their rights under the provisions of Article174th on subrogation in The Property Law. However, the author thinks that we cannotsimply put the income of the mortgage transferring into "the insurance money,damages or compensation etc." Mortgage won’t disappear because of the transferringof the mortgaged property with the consent of the mortgagee,and the mortgagee canstill realize his rights according to the law.Finally, the provisions of The Article191st in The Property Law regulate thatmortgagor may not transfer the mortgaged property without the consent of themortgagee. The regulations do not limit the mortgaged property to the real propertymortgage. But because of the limited space, this article only fixed on the transferringof property collateral...