| Interms of opinions on some issues of General Principles of Civil Law and Property Law,rules of property variation of real estate collateral have gone through great changes,from absolutely forbidding,releasing to limitting.What on earth should law protect the right to a mortgagee? How should law regards the ownership of a mortgagor? These questions involve judgment of validity of property variation of real estate collateral.This essay is written at a time when Civil Code of China is compiled and will soon be available.It is no exaggeration to say that rules of property variation of real estate collateral can not be made a breakthrough at a better time now that we can’t resort all problems to Theory of legal Interpretation.To put it simply,rules of property variation of real estate collateral need to be redefined to keep with both general principle of civil law and current judiciary practice.Thus my essay aims at sorting out rules of property variation of real estate collateral combining judicial cases and relevant legal documents.Considering the stability of civil law,it is only when failing in resorting to legal Interpretation to the greatest degree that we should consider a breakthrough of legal rules.The subject part of the full dissertation includes the foreword,text and epilogue.To be specific,the body text is composed of four parts.The first part involves basic issues of property variation of real estate collateral.Since there are significant differences between movable collaterals and real estate collaterals in historical evolution as well as physica features,it might be better for experts to set rules accordingly.Baced on three patterns of property variation of real estate collateral I’ve clarified,I need to make analysis of respective rationality.The second part focuses on analysis of validity of real estate collaterals’ transfer without the mortgagee’s approval.There is no much controversy that the transfer contract shall be valid.The core issue lies in demonstration of validity of the contract.In terms of this issue,we come to the conclusion that both the agreement of transfer and the property variation are valid even if without the consent of the mortgagee.The third part focuses on analysis of validity of real estate collaterals’ transfer with the mortgagee’s approval.Their consent means waiving of hypothec,to be specific,waiving of priority of claim and efficacy of claim.That is,the mortgagee cannot exercise his mortgageright any more.The fourth part involves establishing specific rules from a liberal perspective based on maintaining stability of civil law as much as possible.As for protection to the mortgagee,it is more suitable to adopt efficacy of claim instead of referring to subrogation regulations.As for protection to the assignee,it is better to resort to regulations of elimination right. |
