Legal Application In Transferring Mortgaged Movable Without The Consent Of Mortgagee

Disputes arising from transferring mortgaged movables without the consent of mortgagees often happen in practice.However,a unified judicial attitude towards such cases hasn't been made among courts.What's worse,the divergences of judicial opinions and ideas would detract from the judicial authority.The reason is that courts fail to have a better understanding of the article 108,188,191 of the Property Law.Based upon the dichotomy of obligation law and property law,the effect of the consent of mortgagees upon the effect of the contract and the effect of the transfer of property should be considered respectively.As to the effectiveness of the contracts,the consent should not affect the effectiveness,and such judgements should not be made through the path of mandatory norms;as to the effect of the transfer of property,the article 191 of the Property Law should not be understood as the complete restriction on the mortgagor's right of disposition:the mortgagor still have the right to transfer mortgaged movables,and the consent means that the mortgagee gives up the recourse of mortgage.Therefore,in disputes arising from transferring mortgaged movables without the consent of mortgagees,the contracts and the transfer of property are both effective,while the mortgage may still exist on the movables,which means the mortgagee's right can be protect through the force of recourse.However,the force of recourse may threat the transaction security and the trust interest of a bona fide buyer.Thus,in certain conditions,the force of recourse should be eliminated,which means a bona fide buyer shall have chance to acquire the ownership without mortgage.As to the application of articles,articles 108,188 of the Property Law are involved,and the articles of acquisition of good faith can be referred to.As to the specific application,the way of delivery shall not affect the chance of acquiring ownership without mortgage,and the judgement of a bona fide buyer should be related to whether the buyer has the obligation of investigation,trade conditions,etc.The burden of proof lies on the mortgagee.In addition,if the movable is transferred back to the mortgagor,the mortgage can resurrect if there is no necessity to protect the transaction security.