The Analysis Of The Retroactivity Of Mortgage Right

Mortgage is a type of hypothecation,which does not require transferring the possession of the subject matter.There is always full of conflicts of interests between the actual possession of guaranty by the mortgager and the legal possession of guarantyby the mortgagee.The goal of the constructionof theguaranty transferring system is to ease the conflict of interests between the mortgagor and the mortgagee.There are two modes of guarantytransferring,which are the restricted transferring mode and the unrestricted transferring mode.Under the restricted transferring mode,the way to protect the interests of the mortgagee is by restricting the disposition right of the mortgagor.Whereas under the unrestricted transferring mode,the mortgagor can dispose the subject by his free will under the requirement of maintaining the guarantee value of the subject matter.The way to protect the right of the mortgagor is by using the retroactivity of mortgage right.Meanwhile,civil law countries use mortgage-clearing system to protect the interest of the third party.Therefore,under the unrestricted mode,the interests of three parties can all be met and this mode seems to be more reasonable.In this paper,we mainly discuss three problems.Whether or not the mortgage has the power of retroactivity? Whether or not the power of retroactivity can balance the interest of three parties?Whether or not thepower of retroactivity is demonstrated in our country?In the part one,we mainly discuss whether or not the mortgage has the power of retroactivity.We look into three aspects of this problem,which are the theory,the practical value and the system of foreign countries of the power of retroactivity.We can come to a conclusion in the end that the power of retroactivity comes from the power of public property credibility.Besides,the unrestricted mode can balance the interest of three parties and is generally accepted by civil law countries.In the part two,we mainly discuss the ways to balance the interest of three parties under the unrestricted transferring mode.The unrestricted transferring mode naturally suit the interest of the mortgager and under this mode there are there modes to protect the interests of mortgagor,including asserting the characteristic of subrogation and substitution and asserting these two characteristic at the same time.There are three ways to protect the interest of the third party,including the elimination right,subrogation and to entitle the transferee to compensate the debts.After analyze,we can come to the conclusion that the characteristic of subrogation and substitution cannot coexist and the characteristic of substitution alone cannot fully protect the interest of mortgagor.Therefore,we should assert the characteristic of subrogation.Besides,the elimination right is more effective to protect the interest of the third party than other three ways.In the part three,we mainly discuss the evolution of legislation in our country.Currently,only interpretation of Guaranty lawadopted the unrestricted transferring mode,and admittedpower of retroactivity.Besides,article 191 of the property law need to be amended as soon as possible.In the partfour,we discuss the improvement of the guaranty transferring system in our country.