| Once the mortgage contract is signed,the transfer of the guarantee will freeze during the mortgage term.That is to say,the mortgagee has neither right to possess the collateral nor to take advantage of it.The mortgager yet has the disposition right and usufruct.Hence,the lease becomes a vital role in the disposition of the guarantee.In China,the constantly-promoted economic development has been boosting the mortgage and leasing,meanwhile,conflicts between them increasing more.To solve such problems,the existing law clearly outlines the border,which is not unified or linked tightly.When conflicting,there will be two forms: “leasing first,pledging second” or “pledging first,leasing second”.For the first situation,the legal system,no break of lease with bargain,is set in the existing law.For the second situation,there’s no unanimous rule for it.Therefore,the problems arise.Under such circumstance,the lease will be cancelled if the mortgagee or the court considers it unreliable for the mortgage payment;while,on the other hand,it continues to exist if the lease is reliable and binding,applying to the rule of “no break of lease”.The problems demonstrated above prompt the author to discuss one typical issue of protection rights with the principle of “mortgaging first,leasing second”.Views on such cases vary both in theories and practice.The author collects the data and discusses the conflict between the mortgager and mortgagee within this situation from an intuitive and analytical perspective so that reasonable solutions will be given.This dissertation is divided into four sections:Part One introduces the case and the disputing focus.A brief review is undertaken on the protection rights issue between Dongshan Plastic Machinery Limited,Fuyang,Hangzhou and Bonnie Crafts Limited,Fuyang,Hangzhou.Also comments on the court decision are given;the disputing focus of the case is presented.Part Two demonstrates the conflict rules between the mortgage and the lease within the principle of “mortgaging first,leasing second” through the comparison and contrast of such rules in Japan,South Korea and Taiwan whose legislative practice is used for reference for the mainland,China.It has been noted that the leasehold relation should be terminated on the basis of the hypothec fulfillment.Part Three measures the fact whether the guarantee price could be set as the criteria of the hypothec fulfillment,based on which the author illustrates how the leasehold relation can be canceled and who has the right to propose the cancelling process.Part Four recommends the protection of the lessee after the hypothec fulfillment in China,especially after the termination of the leasehold relation referring to the lessee’s preemption right,the compensation for the leaser and the establishment of suspended delivery system.The author also concludes the case analysis. |
