Textual Research On System Of Right Of Divestiture

Along with the property law of 2007,China's debate about deleting right system has not interrupted,many domestic scholars on China's "property law" the provisions of article 191 of the divided whether belong to the method of the power system regulation.In fact,the provisions of article 191 of the "property law" in China is very obscure,security law on the basis of the existing regulations in our country,has carried on the further perfect,many scholars in various comparison and research after the scientific theory for deleting the misreading of power system are pointed out,and pointed out that China's "property law" the 191th regulation is not deleting some scholars think the right system in our country,but instead of pay system.Although deleting right system and instead of pay system from the legal effect is to eliminate the mortgage collateral,is analyzed from the aspects of concrete,however,shows that the method right system from concept to the exercise of specific condition has its unique system structure,is not the same as instead of liquidation system,instead of liquidation system is essentially a to eliminate the debt for the purpose of indirect effect to eliminate the mortgage system,there are essential differences between both,and for the difference between the two,the author in the text will be elaborated in order to correctly correct the two systems to make a clear division,to clarify the existence of academic misunderstanding.There is no provision on the system of seizure in our current legislative system,but France,Japan,Switzerland and other countries for the removal of the right system has developed a variety of legislative models.Our country still has a flaw in the provision of collateral transfer system,although the provisions of the alternative payment system and the price of subrogation system and other collateral transfer system,but these systems still exist in the actual operation of the inevitable flaws,can not seek the best balance of interests between the debtor,the creditor and the third buyer,contrary to the current market rules.The design of independence right system to take full account of the creditors,the debtor and the collateral transferee between the interests of the three relations,collateral in the law tends to protect creditors but also give the disadvantage of the assignee to certain adversarial rights,so they cannot transfer the legal relationship in the mortgaged property too passive.This system is designed in line with the principle of good faith and the principle of fairness and justice,which is more flexible to fill the loopholes in the mortgage transfer system,easing the conflict of interest between the three.In view of the advantages of the method right system and existing in our country has the necessity and feasibility of the method was introduced into our country should be combined with its own national conditions and reasonable right system,to perfect our country's relevant system of free transfer of the mortgaged property.Based on the actual case of collateral on the mortgage transfer system of the present stage of our country legislation and the reality of the transfer,it is necessary to have a selective introduction of MOR system,make full use of the advantages of the system,for our country's specific situation to design the best arrangement of the system,in order to achieve the normal and orderly operation of market economy.