Study On The Clause Of Generalized Mortgage

The collateral does not have an agreement or an unqualified mortgage clause,which is known as the "generalized mortgage clause".According to the classical civil law theory,a so-called general mortgage which is established in the whole property can't be established because of the violation of the specificity of property rights.The Article 56(1)of the Supreme People's Court's Interpretation of Several Issues Concerning the Application of The Guarantee Law of the People's Republic of China(hereinafter referred to as the "judicial interpretation of the Guarantee Law"),follows the specific principle of real right,it provides that the collateral is not agreed or the agreement is unknown and can not be corrected or inferred,the mortgage can't be established.But whether in theory or in legislate,it is not clear that the mortgagor should bear the responsibility and should bear what responsibility when the mortgage can't be established.Whether the mortgage contract can be established or not in the judicial practice,there is no disagreement between the courts and the understanding that the mortgages are not valid.However,there is a big disagreement as to whether the mortgagor should take the responsibility and what responsibility should be assumed when the mortgage contract is not established.This paper summarizes the different understandings of these articles in practice by collating and analyzing the relevant judicial judgments about the generalized mortgage clause,and analyzes the causes of the differences.Moreover,it wants to use the way of interpreting the expression of intention to conclude that the generalized mortgage clause is a contract,which is called mortgage but actually it is a guarantee,and the mortgagor shall bear the burden of guarantee in the absence of the right of plead before the lawsuit.This paper is divided into the following parts:Part One: Analysis of Dispute Cases.The paper will discuss the case,the focus of the dispute between the two sides and the different court's view of the referee of five classic cases,in order to sum up the trial practice for the generalized mortgage clause of the controversial focus.In practice,some courts consider that since Article 56(1)of the Judicial Interpretation of the Guarantee Law has made it clear that the collateral does not have a legal effect,then themortgagor should not bear civil liability.Some courts believe that the use of non-specific assets as collateral is essentially a credit guarantee.Hence,these courts make a judgment that the mortgagor undertakes the joint and several liability.Some courts believe that the mortgage contract is not established,the mortgagee should bear the responsibility of negligence of the case.Some courts refused the creditors claims which asked the mortgagor to undertake joint and several liability claims,but the courts held that the nature of the generalized mortgage clause didn't have the connection with the referee,and “do not evaluate the clause".Some courts deal with this clause in accordance with the coexistence of debt.Part Two: Practical dilemma of generalized mortgage clause.The article clearly points out that the generalized mortgage clause faces the dilemma of qualitative differences and lack of legislation in judicial practice.In terms of qualitative,there are four views: liability exemption,guarantee,contracting fault liability and the coexistence of debt undertaking.At the legislative level,our laws regulate the floating mortgages clause.But it lacks standards on the generalized mortgage.The situation of same cases having different judgment In the judicial practice is ubiquitous.Part Three: The analysis of the content and lawsuit relationship of the generalized mortgage clause.The author starts from the analysis of the generalized mortgage clause content.Firstly introduces the way of the appearance of the mortgage clause in practice.On the basis of clarifying the contents of the generalized mortgage clause,this paper examines the terms of the generalized mortgage clause respectively through the perspectives of the Contract Law and the Property Law.It concludes that the contract is not established,because the generalized mortgage clause is not clear by the subject matter.Moreover,it violates the specific principles of the real right and there is no effect of security interest.Part Four: The comparison of generalized mortgage clause and related system.The article recognizes the positioning of the generalized mortgage clause in the guarantee system,thus helping to clarify its boundaries with other circumstances,and highlight the particularity of generalized mortgage clause by comparing the generalized mortgage clause and other similar nature or processing mode similar to the civil law related systems,such as floatingmortgage,unregistered real estate mortgage,avoidance behavior,coexistence of debt commitment system and so on.Part Five: Reflections on generalized mortgage clause.We can find that the contradiction between the generalized mortgage clause and the variation clause between the creditor's rights guarantee and the property right guarantee,but it can reflect the conflict between the legislative concept of civil law and the daily life concept of the majority of the people.And the paper points out that the mortgagee in practice is often based on the " judicial interpretation of the Guarantee Law " Article 56(1),which regulates that it is a malicious act to avoid the civil liability.The court make a general judgment on the basis of the clause.In essence,the court just complicates the simple question.Part Six: The solution to the generalized mortgage problems.To solve these disputes better,this paper puts forward that the generalized mortgage clause should be judged from the angle of interpretation which including the explanation of meaning,purpose explanation,whole explanation and honesty and credit interpretation,combining with the beneficial experience of judicial practice.The generalized mortgage clause is essentially the guarantee provided by the parties in their personal property as a claim.