Research On The Transfer Rules Of Real Estate Collateral In China

With regard to the transfer of the mortgaged property, our legislation has experienced the General Principles of Civil Law, The Law on Guarantee, The Judicial Interpretation of the Guarantee Law and the Property Law. The General Principles of Civil Law provides that the transfer without the consent of the mortgagee is invalid,The Law on Guarantee requires the transferor to notify the mortgagee or inform the transferee, the Judicial Interpretation of the Guarantee Law holds that the collateral can be freely transferred,Property Law holds that the transfer of the mortgaged property should be limited.The transfer of the mortgaged property involves the mortgagor, the mortgagee and the assignee. Not only involves the transfer of goods, but also affect the transaction security, so the reasonable formulation of the rules are important. Before making rules to balance interests among three party , we should first solve the problem whether mortgaged property can be transferred freely. Concerns about the effects of free transfer does not exist. The free transfer of the mortgaged property is not only the national legislation, but also conforms to the principle of property law and the basic theory of property rights system, there is no adverse effect to the mortgagee and assignee.On the basis of the free transfer of collateral, the protection of mortgagee's interests is an important question that need to. solved. It is possible to prove that the mortgage should be pursued by the logical argument, the system explanation, the perfection of the registration system and the development of the system of public recognition of the public right.The mortgagor may exercise the right of first refusal when the mortgagor transfers the collateral without paying the debt. In addition,China's law does not recognize the material transfer of collateral price,the advancement of the advance or the lack of deposit also brings great difficulties to the implementation of the transfer of price on the subrogation Thus, Force of recourse the mortgage is the best choice to protect the interests of the mortgagee.In addition to the mortgagee, the interests of the assignee is also important. The Property Law recognizes the third party's liquidity on behalf of debtor,and the right of the transferee to pay the mortgagee's creditor's rights to eliminate the mortgage right has the applicable space when the value of the collateral value is higher than the guarantee amount. However, when the value of the collateral is less than or equal to the amount of the secured creditor's right, there is no room for the subrogation system,It is necessary to make a choice among the price settlement and the removal. The price of compensation very few application for the reason that it is controled by the mortgagee.Also the Right of exclusion has been criticized for excessive burden on the mortgagee, The Japanese Civil Code has perfected the right of exclusion and the right to eliminate the right to mortgage has been refined, on one hand it is controlled by the buyer, on the other hand, it will not make bad effects on the mortgagee, China's future legislation should learn from it.Through the system"Force of recourse+The third party's liquidity on behalf of debtor+the right to eliminate the mortgage",we can not only promote the flow of goods, but also give effective protection of the interests of all parties, China's future legislation should adopt this view.