The Independent Status Of Mortgage In The Security System-and The Analysis Of The Article Twenty-fourth Of The Judicial Interpretation Of Private Lending

Two contradictory judgment of the Supreme Court on the mortgage leads to the problem consciousness: mortgage has position in the Guarantee Law? The page has redefined the concept of mortgage.Does mortgage belong to guarantee or trade? Then the page discussed,since the mortgage is guarantee,which kinds of typical guarantee it has belong to? this paper will compare with a variety of typical guarantee,finding that the mortgage does not belong to any one typical guarantee;since the mortgage do not belong to the typical guarantee,mortgage should belong to atypical guarantee,and compared with various atypical guarantee,mortgage and other atypical guarantee are different.This paper draws a conclusion: the mortgage is guarantee not trade,so the system of the Guarantee Law should have position for the mortgage.The First part of this article tells two decision conflict cases of the Supreme Court's," case of Zhu Junfang" and " case of Guangxi Jiamei " rule respectively on the validity of the mortgage,and which leads to the problem of mortgage in Guarantee Law system :does mortgage has independent position? In the Second part,compared between mortgage with conditional sales contracts,exploring the autonomy of the parties,it finds that mortgage is guarantee but not a conditional sales contracts;The Third part of the gage will compare the mortgage and typical guarantee,founds it not belong to the system of the typical guarantee,so the mortgage is not a typical guarantee but atypical guarantee.It does not apply to the fluidity clause,so you can't use this reason to deny the effect of mortgage;The Fourth part comparing the kinds of atypical guarantee,finds that mortgage not belong to other atypical guarantee,so the mortgage is an independent atypical guarantee,holding a position in the law system;The Fifth part compares law theory?law and cases at Home and Abroad,and shows that mortgage accepted by most countries,and playing its unique function of guarantee;The Sixth section is proposed mortgage is a guarantee then,it must face the numerus clausus' challenges,so it proposes numerus clausus soften theory,and "judicial interpretation" proofed this point;the seventh part is the conclusion of this paper,because this is guarantee,a kind of atypical guarantee,and calling for help of numerus clausus soften theory.