Research On The Related Issues Regarding The Transfer Of Mortgage

As one of rights for security，mortgage has an important effect on marketparticipants’ investing and financing in practice. Therefore, the design of themortgage system especially the construction of the transfer system is so essential.We country has already legislated on the mortgage transfer system for many timesand such legislation varies on this issue. This is not only because of the particularlegislative background but also the distribution and balance of interests of themulti-stakeholder. It is also related to the usage of the pawn and the transactionsecurity. However, the change of law is not the best way to improve a system. Tocombine basic principles and theories with the social practice work better. Therefore,this paper firstly explains about the article191of the Property Law, then discussesand analyzes some basic issues during the mortgage transfer system, and finallyproposes the personal suggestions on the system improvement.In Chapter1, I put forward different interpretations in practice on the relationsamong the article191of the Property Law, the Guarantee Law and its JudicialInterpretation and on the article191of the Property Law through two different linesof thinking and results in one judgment of the Supreme People’s Court. According to the analysis on this case, I come up with two questions. The first one is how tobalance the rights of mortgagor, the mortgagee and the third buyer during themortgage transfer. The second one is how to realize the objectives on effective usageand transaction security. I will answer these two questions in the following text byway of interpretation and analysis on article191and other related legal issues whichare basic thereof.In Chapter2, I have an interpretation on the article191of the Property Law,analyze the views of the academia and the judicial practicing departments and theparticular legislative background, and point out all the issues and defects thereofwhich will be rectified.In Chapter3, to analyze the first question in the design of the mortgage transfersystem. This Chapter firstly introduces and analyzes all the legislation on this issueof our country. And on this basis, I list all kinds of views in the academia and mainlyanalyze the theory of restrictions on the ownership. Finally, I come up with mypersonal view that the mortgage is allowed to transfer freely.In Chapter4, to determine which model can be adopted in our legislationthrough the introduction about the subrogation system and the recourse system. Thischapter firstly analyzes the contents and views in legislation and academia aboutthese systems, and point out the obstacles on the application of the mortgage transfersystem. Moreover, combining with the models of the mortgage transfer in countries’legislation, I compare the subrogation with the recourse and conclude that the latterone is more suitable for social practice of our country. We shall take the recoursesystem as the basis to design the mortgage transfer system.The design of the mortgage transfer system is a difficulty in our legislation. It isconsidered that we shall go back to the tradition to allow the free transfer of themortgage and affirm the recourse right of the mortgage.