A Study On The Change Of Mortgage Of Real Estate In The Transfer Of Creditor's Rights

When the creditor's rights are transferred in Article 192 of the Real right Law of our country,the subordinate rights of the principal creditor's rights should be transferred along with the main creditor's rights,therefore,the immovable property mortgage which is subordinate to the main creditor's rights should also be transferred with the assignment of the creditor's rights.However,according to the principle of real right law,the change of real estate mortgage must be registered to take effect.As to the specific rules of the change of the mortgage right of real estate in the transfer of creditor's rights,the law and the relevant judicial interpretation of our country have not made the clear stipulation,this also causes the different judgment viewpoint in the practice.Although there are two kinds of viewpoints at present,there are two kinds of views: the principle of transfer of nature and the doctrine of registration elements,but few scholars from different viewpoints have demonstrated this problem in more detail,so the problem has not been solved substantially all the time.The change of mortgage right of immovable property in the transfer of creditor's rights not only reflects the legal effect of the transfer of creditor's rights,but also follows the strict requirements of the principle of property law,and reflects the close relation between creditor's rights and real right.Therefore,the research on the rules of the change of real estate mortgage rights in the assignment of creditor's rights should be based on the interpretation of the legislative purpose and the system interpretation of the relevant articles involved in our country's "Real right Law","Security Law","contract Law",etc.To explore the theoretical connotation behind the article,and combined with domestic and foreign legislative and practical experience,summed up a sound rule of advice.The article is divided into five parts:The first part analyzes the two cases and points out that the rules of the change of the mortgage of real estate in the assignment of creditor's rights are lack of clear legislative provisions and the practical views are different.And through the analysis of the focus of dispute and the main points of the referee,the dispute points are summarized.The two cases represent two different points of view respectively,and the reasons of the judgment are all based on the nature of the change of the real estate mortgage in the assignment of creditor's rights,which is very representative.The second part clarifies the normative basis of the change of real estate mortgage in the assignment of creditor's rights.This paper studies the normative basis and essential divergences behind different viewpoints,divided by the principle of transfer of nature and the doctrine of registration elements.In addition,the author combs the relevant norms of the transfer registration of immovable property mortgage in the assignment of creditor's rights,and affirms its validity based on the rank of rules,which cannot be taken as the normative basis for determining the change of real estate mortgage right.The third part analyzes the nature of the change of real estate mortgage in the assignment of creditor's rights.This is the key to determine the rule of the change of the ownership of the mortgage right in the transfer of the right of the real estate.Based on the analysis of the real right attribute of real estate mortgage,whether the property right of real estate mortgage in the assignment of creditor's rights belongs to the change of real right based on legal act determines the mode of real right change.From the analysis of the real estate mortgage as a subordinate right attached to the principal creditor's rights,the change of the real estate mortgage has strict subordinate attribute and cannot be separated,which determines that the changing rules of the real estate mortgage in the assignment of the creditor's rights should conform to the subordinate attribute and the principle of indivisibility.In the 4th part,the author analyzes the real effect of the transfer registration of real estate mortgage on the basis of answering the rule that the property right of real estate mortgage should be changed in the transfer of creditor's rights,that is,the registration produces public effect.Because the registration of transfer of immovable property mortgage in the transfer of creditor's rights is not mandatory,problems related to registration will arise,such as the dispute of registration of immovable property mortgage after assignment of creditor's rights or the original mortgagor's obliteration registration,which should be attached importance to.Part 5th summarizes that the rule of transfer is determined by the nature of the change of mortgage of immovable property in the transfer of creditor's rights,which accords with the legislative purpose of the change of mortgage of immovable property in the assignment of creditor's rights in China,and does not violate the principle of legal certainty of real right.The transfer registration of immovable property mortgage is the accompanying obligation of debtor in the assignment of creditor's rights and has strong publicity effect.The author suggests that the legislation should further clarify the real estate mortgage with the principal creditor's rights of transfer rules,emphasizing the transfer of registration is the transfer ofcreditor's rights in the collateral obligation,generating publicity effect against a bona fide third party,so as to realize the maximization of transaction security,maintenance records at registry for the real right state.