| Mortgage Guarantee System across two areas of Property Law and Creditor's Rights Law,has always been "The Crown of Security Property" in the world,It is favored by the possession of its non transfer and the full use of its value,to guarantee the realization of the creditor's rights and the fulfillment of the debt,strengthens the credit of the traders,prevent and reduce unnecessary transaction risk,plays a very important role."General Principles of Civil Law""Property Law""Guarantee Law" and their judicial interpretation constitute the mortgage system of our country,but also full of contradictions,and with the development of market economy the malpractice is becoming more and more obvious,there is an urgent need in theory and legislation of further perfect.This paper uses history,text and comparative the three analysis methods,in the basic meaning of mortgage use historical method,the modern mortgage's legal text formulation background,development process are analyzed;in the formal three parts mainly uses the text analysis and comparative analysis,one by one contrast all the provisions of "Qing Dynasty Civil Law Draft""Dali Court Civil Case Series""The Republic of China Civil Law Draft""Republic of China Civil Law""German Civil Code""Civil code of Japan",and then analyze the evolution process of the modern Chinese system of right to mortgage and evolution trend,finally the evolution of the mortgage system is evaluated.This article is divided into four parts:The first part introduces the meaning and nature of modern China's mortgage.This part first on the meaning of the mortgage from four legal texts are analyzed,followed by comparison of obtained the evolution of modern China mortgage meaning trend.Secondly,from the meaning of the mortgage to analyze its main properties:The Real Rights,The Subordination,and so on,and by comparing that the evolution of the nature of the mortgage in China modern trend.In the second part,the evolution of the acquisition and effective system of modern Chinese mortgage has been analyzed.In first section the acquisition system of mortgage is analyzed,from setting,subject,contracts and the registration four aspects,after summarizes the development tendency of modern Chinese mortgage in acquisition system.The second section through the comparison of four texts,the effective system of modern Chinese mortgage has been analyzed.Firstly,it analyzes the mortgages secured creditor's rights,focuses on whether or not to include the deferred interest and liquidated damages are discussed;secondly,the validity of mortgage rights and the scope of analysis,focuses on whether the appendages;again,analysis of the right to participation;finally,a summary of the development tendency of modern Chinese mortgage in effective system.The third part,the evolution of elimination system of modern Chinese mortgage is analyzed.This part through analyze the four texts on the elimination system:Realization system,The destruction of the main creditor's rights,Loss of collateral,Creditor abandon,Mortgage contract is invaiid,finally comes to the conclusion that the development tendency of modern Chinese mortgage in elimination system.The fourth part analyzes the evolution reasons and characteristics of modern Chinese mortgage system,and make an assessment of it.This part is the conclusion of the article,its evolution reasons and characteristics,defection,history and modern value were summarized.To sum it up,this thesis analysis our country modern four text of mortgage and the court case,interpretation of cases,or civil code of Germany and Japan,some of the provisions,then the development venation of modern China's mortgage system to sort out,study the change on the specific content of the system,then conclude its development trend,the deficiencies and social value.At last,this trend is used to discuss and predict the development trend of the mortgage system in our country,and the reasonable part of it should be used for reference and development. |
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