On The Legal Effect Of The Transferation Of Real Estate Collateral

Mortgage system can be fully effective matter, the parties in the process of investment and financing important security devices, play an extremely important role in China's economic development process in the market, known as the "king of Guarantees." In order to maximize the realization of the best use, in real life there are a large number of already provided collateral encumbrances into circulation, then our property law for the transfer of collateral attitude is fundamentally positive attitude or a negative attitude? Without the consent of the mortgagee, the mortgagor transfer collateral, then the effectiveness of the transfer of the contract concluded between the mortgagor and the transferee how collateral for disposition of the collateral effect that? Different historical period, China's legislators on this issue in the legislative orientation exhibit repetitive transform, ambivalent attitude, but also to China's judicial practice has brought embarrassment and confusion. In this context, how to ensure the security and methods to make the best use of its legislative purpose, the paper by means of legal interpretation of the implementation of China's relevant laws and regulations and legislative value orientation of profound interpretation, in order to provide some assistance to the judicial practice.In addition to the introduction, the text includes five parts. The first part describes the evolution, and the inherent power of the transfer of collateral legislation thought. For the absolute protection of the interests of creditors, "people pass comments" With the transfer of the collateral doctrine of strictly limited, non-consent of the creditor collateral transfer invalid, that provision is clearly contrary to the laws of the market and free circulation, and then to some extent hindered the economic development. After the "security law" has gradually relaxed the restrictions collateral assignment, only requires "notice" mortgagee can. However, overly relaxed attitude to the interests of the mortgagee and cause serious damage. Finally, the "Property Law" once again return to the doctrine strictly limited, in view of this, I hope that through legal interpretation method, the "Property Law" theoretical interpretation of the relevant legal norms, to guide practice.The second part of the literature of the sort described by the legislation of other countries and regions validity of the contract on the transfer of collateral and the Right of effectiveness. Through a comparative study of the transfer of the collateral law, civil law analysis of other countries in dealing with the transfer of the collateral on the legal theory of the root causes of the problem very different attitude. Discussion went back to the original question about whether to recognize the fundamental issue of property rights act theory up.The third part focuses on the transfer of collateral and legal structure of the act and the delimitation of its legal effect. This behavior is essentially the transfer of collateral consists of two legal acts, the behavior of a burden, a disposition. That burden effectiveness of the transfer behavior of validity of the contract, referring to the effectiveness of the effectiveness of disposition of property rights transfer behavior. By "give light to clear heavy" legal interpretation method for analyzing results mortgagor without the mortgagee's consent unauthorized transfer of the mortgaged property in line with the legal structure of the right disposition, and further discussed in the case of constituting the right disposition, the effect of changes in collateral effect transfer of the contract and property rights.The fourth part of collateral transfer clarify the relationship between the system and made in good faith in the case constituted no right to dispose of. Firstly, an analysis of bona fide acquisition of legal structure, collateral obtained in the case of transfer constituting no right to dispose of and can not be applied to solve the bona fide acquisition, mainly because of the bona fide acquisition of Elements "goodwill" of legal interpretation. In the case of transfer constituting collateral right disposition, the assignee of the collateral does not comply with the requirements of Bona Fide Acquisition in third person "in good faith" requirement. According to the practice of the relevant procedures for the transfer of collateral requirements, in this case, the assignee can not be "goodwill" to obtain collateral.The fifth part talks about without the consent of the mortgagee, the mortgagor transfers the liability for breach of collateral damages scoping. During the mortgage collateral mortgagor to dispose of the collateral is limited, non-consent of the mortgagee, the mortgagor shall not transfer the mortgaged property, otherwise their property transfer is invalid. After the signing of the transfer of the mortgage contract and the assignee, the assignee shall acquire the collateral purpose can not be reached, the law gives non-defaulting party the right to terminate the contract and demand the mortgagor to damages suffered by the assignee thereby.