The Protection Of Buyers' Benefit In Mortgage Transfer

How to deal with the interests of the three parties,realize the balance between the full use of collaterals,the security of the mortgagee's claims,and the security of transactions,is the core mechanism of the collateral transfer system.Whether under the prevailing legal provisions in China or in the force of recourse mode,it should't only protect the interests of the mortgagee in an inclined manner,the interests of the assignee also have the necessity and legitimacy of protection.In essence,the assignee mainly have two benefits:one is the protection of ownership,and the other is the preservation of transaction value.The possibility of the transferee's interest protection under different circumstances should be discussed separately.The first problem to be solved is the protection of the transferee's ownership.Under the premise that the current legislation adopts a restricted transfer model,the transfer contract is effective,but the real right can only be obtained conditionally.Without the consent of the mortgagee,transferee can eliminate mortgage by substituting for debt to gain ownership.However,on the basis of the justification for subrogation,we still need to see that our country's legislation about it is shallow,how to compensate for transferee's losses has't been mentioned.And in the case of creditor's rejection or debtor's disagreement,the effect of subrogation liquidation is not clearly defined,so that the assignee may face the risk of legal uncertainty.And the scope of application of the system also has certain limitations.When the main debt is greater than the amount of the value of the collateral,the transferee may not be willing to choose to apply to pay off all debts.And in the case of non-monetary debt,subrogation liquidation also cannot be applied.Although under the legislation of restricting transfer,the assignee has the possibility of ownership,there are still many drawbacks in the transfer model itself,which has been criticized.The common practice in comparative law is to allow the free transfer of collateral and to determine the effect of the mortgage recourse.When we formulate the property rights code of the future civil code,we must establish the force of recourse,whether from the theoretical basis,institutional strength,normative system interpretation,or practical needs.Under the premise of establishing the pattern of force of recourse,elimination can be used as a powerful means for the assignee to safeguard their ownership interest.After defining the concept based on the legislative history of the elimination,it is clear that by comparing with other protection methods,the characteristics and advantages of the elimination can be clearly defined.The current law of our country does not stipulate the force of recourse.The controversial article 191,paragraph 2 of the "Property Law"proscribes the system of liquidation.After determining the pattern of the force of recourse,our country has the necessity and possibility of introducing a recourse system,but it should be explained and perfected from four aspects.The second problem to be solved is the protection of the transferee's interest in the transaction,that is,how the loss of the transaction value of the transferee in the transfer is compensated.Warranty of defects of right and liability for breach of contract can be used as the basis for the assignee's right to claim compensation from the mortgagor.However,there are certain deficiencies in our country's provisions on warranty of defects of right which should be explained and perfected when it is specifically applied to the transfer of collaterals.If the assignee is aware of the existence of a mortgage,it should not exempt the mortgagor from its responsibility.The method of liability shall be defined in conjunction with the specific circumstances of the transfer of the mortgaged property.Although the above methods can provide some protection to the interests of the assignee,but the transaction efficiency is low and the transaction cost is increased.Therefore,in addition to seeking relief through statutory responsibilities,the parties may adopt a more common practice abroad:The mortgagor and the transferee negotiate before the transfer of the mortgaged property,and make special arrangements for the transfer price,and then agree that the transferee should fulfill the obligation of repayment.Through this prior arrangement of transaction structure,the protection of the interests of the transferee can be achieved.