Legal Issues Research On The Stores Leasing Right Pleding

The pledge of shop lease right is an important way of guarantee in judicial practice.Because it can efficiently solve the problem of financing difficulties of small and medium-sized enterprises,it has been widely used in Jiangsu and Zhejiang provinces where small and medium-sized enterprises are developed.However,there are many problems in the practice of this new type of guarantee,which leads to the discussion of the legal issues related to the pledge of the right to lease of shops in the theoretical and practical circles.There are different views on whether the legal nature of the security of shop lease right should be characterized as hypothec or pledge.Some scholars define it as mortgage,because under the system of mortgage of right guarantee and pledge dichotomy,the leaseholder still needs to occupy and use the lease right of shop after the establishment of guarantee of the lease right of the shop.Some scholars define it as the category of usufruct security right mortgage.However,this article characterizes the security of shop lease right as pledge security.The reasons are as follows: the act of creating security by the right of commercial lease between the parties is in fact a pledge of the right of lease,which belongs to a pledge of rights.On the pledge of the leasehold of shops The question of whether it is effective or not is the question of its appropriateness.Under the existing principle of "property law" in our country,how to confirm the legal effect of the guarantee by means of interpretation and analysis is also the central point of this paper.According to the interpretation of the right to lease of a shop,it should be one of the other property rights which may be pledged by law and administrative regulations as stipulated in item 7 of Article 223 of the Real right Law.The reason is: in order to invigorate the economy of medium,small and micro enterprises,a wide range of interpretations should be made here,that is to say,the situation that does not violate the principle of legalism in real right,does not affect the order of the socialist market economy and the legal order,and will not have adverse consequences Under the circumstances,the newly emerged rights as the object ofpledge of rights are interpreted as the practical content of guaranty,but at the same time,they still follow the principle of prudence.The publicizing effect of commercial leasing right and the concrete implementation method are also the core contents of this paper.The principle of legalism in real right emphasizes that the kind and content of real right must be prescribed by law,but it does not require that the method of publicizing real right must also be prescribed by law.The direct purpose of real right publicity is to show the change of real right and the present situation after the change.Therefore,as long as the means adopted between the parties to achieve the purpose of publicity,we can confirm the completion of the public notice of real right change,and obtain the effect of the right setting after the public announcement according to law.In connection with the pledge of the right to lease of shops,the pledge of rights is a kind of thing that is clearly stipulated in the Law of Real Rights of our country.One of them is the pledge of the right to lease,which is not contrary to the requirement of the principle of the law of real right to bring it into the category of pledge of right.At this point,the mortgagee,that is,the financial institution,the mortgagor and the shop lessor,that is,the market manager,has signed a tripartite agreement to register at the shop lessor and,through the agreed guarantee period,without the consent of the mortgagee,The mortgagor shall not transfer or sublet the lease right of the shop,and the lessor shall have the right to refuse to transact the transfer or sublease transfer formalities.Thus,through a tripartite agreement,the mortgagee has exercised control over the right to lease a shop.If a third party wishes to lease or be granted the lease right,he must contact the market management,and the third party must contact the market management The registration office or management informed the third party of the fact that the shop was pledged,and the burden of the right to lease was known to the third party,and the public purpose of the right to lease had been achieved.It is for this reason that when the tripartite agreement between the mortgagor,the licensor and the shop lessor is established or comes into effect,the pledge of the right to lease of the shop is made due to publicity,and the subsequent collateral obligation,For example,the transfer of creditor's right is the control of the mortgagee's right to lease shop.TheCivil Code should maintain an inclusive,efficient and economical attitude.At the level of legislative suggestion,we should refer to the scope of mortgage subject matter in real right law and amend it to: "pledge right not prohibited by other laws and administrative regulations."...