Research On The Validity Of Collateral Transfer

Mortgage is the most important way of guarantee. This form of guarantee not only can ensure the use of collateral by mortgagor, but also protect the mortgagee's right when the debtor is unable to repay.Since there is no transfer of possession on the collateral, the mortgagor directly control the collateral and enjoy the ownership, who will have a great freedom to transfer collateral. About collateral transfer, the 191 article of “Property Law” make a distinction which depend on mortgagee's agreement, and strictly limits collateral transfer without the mortgagee's consent. In practice, without the consent of the mortgagee, the dispute on mortgaged property transfer arising abound. In order to balance the interests of all parties, how to regulate without the consent of mortgagee, which has become an important part of the mortgage system. This thesis will clear up the existing legislation, judicial practice and theory on collateral transfer. And on this basis, a comprehensive legislative experience from Japan, Germany, the United States, France and other countries, in view of current Property Law's regulations, put forward the corresponding observations and recommendations.This article is divided into four parts :The first part, clear up our existing legislation and the relevant judicial interpretations. Including the “civil law opinion”, “guarantee law”, “guarantee law interpretation ” and “property law”. Through analyzing and summarizing on provisions of the existing collateral transfer system, we can see, regard to collateral transfer, the attitude of legislators from severe restrictions to the free transfer, and then return to strictly limit, which always change. At the same time, combining with the provisions of the legislation, the purposes of legislators will be conducted in-depth.The second part, classify and summarize the typical case which related to collateral transfer. Through case's analysis, find the existing problems on collateral transfer in the referee applies, and analyze the reasons behind the contradictory judgments. At the same time, trim the current laws and regulations and sources of law relating to changes in property rights in China, and find difficulties which are faced in practice on collateral transfer.The third part, the existing theory about collateral transfer, which include limited collateral transfer institution, the chase institution and the price of gold subrogation institution, combined with legislative experience from other countries, weigh the pros and cons of the different systems, to provide a theoretical basis for the selection for collateral transfer.The fourth part, based on a comprehensive analysis of legislation, practice and theory, the author of this thesis believe, based on the value of collateral, meanwhile take advantage of the promotion for market transaction, whether or not the consent from mortgagee, guaranty should be allowed to freely transfer, the chase institution and the price of gold subrogation institution clearly fit this requirement. Meanwhile, the balance of interests based considerations, in particular the provisions which the price of gold subrogation institution should be first use. Only the price of gold subrogation institution can not apply, the chase institution as a supplement to be applicable.The author believes that the article 191 from "Property Law" concerning the collateral transfer goes against the rule in the common practice which allow mortgage sale around the world. It is also not compatible the trends for the promotion of market transactions. In order to achieve a balance of interests in collateral transfer, should applying the chase institution first and the price of gold subrogation institution, modified Property Law's arrangement.