Study On The Sequence Of Mortgages

The phenomenon of repeated mortgage of the collateral in the economic life is becoming more and more common. In this case, how to implement the multiple mortgages in the same collateral and to what extent have aroused a high degree of attention, and this is the issue of the sequence of mortgages. The existing legislation in China such as the Property Law and Guarantee Law has formulated simple regulations on the issue mainly from the confirming standard of the sequence of mortgages and the recognition of the disposition of the sequence of mortgages. But as to the variation rules of the sequence of mortgages, the legal effect of various disposal action on the sequence of mortgages and how to deal with the special circumstances that often occur in the process of the sequence, the regulations are not elaborate, which causes that the judicial practice has encountered many difficulties, and more studies are needed to clarify and solve the related issues. The subject is starting from the second part, starting with the the meanings of the sequence of real estate mortgages, the main research object is the sequence of the mortgages of real estate. After the dispute of the nature of mortgages, the author thinks that the sequence of the mortgages is a kind of entity procedural rights, the establishment of the sequence of the mortgages system is conducive to protect the interests of the creditors, to provide risk early warning for the mortgagee, to achieve the economic value of the mortgaged property, to lower transaction costs, but also important aspects of the improvement of the mortgage system;The third part mainly analyzes the advantages and disadvantages of two legislative mode of the sequence including Ascending principle and Fixation principle.It conclude that the two kinds of legislative mode is no absolute advantages and disadvantages.The legislation in China should combine our own legal tradition and national conditions.We should introduce some regulation of Fixation principle appropriately,under the Ascending principle and give the two parties a certain freedom to reach an agreement.In addition to this,from the study of Japanese mortgage securities legislation process,there are many similar legislation background with our country,so we can draw lessons from the related mortgage securities legislation.The fourth part is mainly discuss the mortgage registration system on determination of the standard of the mortgage sequence.the mortgage registration system include Registration validity doctrine and Registration confrontation doctrine, the former is recognized in China,its determining standard should be the "registration earlier principle" and the "same time same sequence principle". In addition, in some special cases, how to determine the sequence of mortgage, such as how to deal with these situations that the mortgage implementation time is not match with the debt maturity;The fifth part is mainly about the transfer, change and abandonment of the sequence of mortgages, including their related theory and legal effects.It comes to a conclusion that we should adopt the "relative validity" theory about the transfer of the sequence.The transfer of the sequence is different with the "relative abandonment"of the sequence.It discusses the established condition and the legal effects.of each kind of the disposition of the sequence.