Study On The Effect Of The Transfer Of Mortgaged Property

In the society of market economy,pursuing maximum benefits is the target.As a form of guarantee,mortgage provides priority for the mortgagee with definite thing,and the non transfer of property enables the mortgagor to make full use of its value.As a result,the mortgage system plays an important role in the modern market economy society as the “king of guarantee”.From the perspective of legal theory,the Article 191 of Real Right Law is one of the core provisions of the mortgage system as it reflects the arrangement of interests for all parties intensively in the mortgage legal relationship.However,the article only stipulates the conditions for the transfer of the property without stipulating the effect of it.So,the article is not only disputed by law experts and scholars;it causes problems in practice.With the promulgation of the General Provisions of the Civil Law,the compilation of the Civil Code is proceeding at the same time.It is necessary for us to reexamine this system and integrate it in this process.Based on theoretical analysis,empirical analysis,historical analysis and comparative research methods,etc.There are five parts of the article to research the effects of transfer the mortgaged property:the first part comes up with the relatedissues through a typical case;the second part compares the same and different mode of mortgaged property system between the civil law countries,and analysis the pros and cons of different modes;the third does the specific study of legislative development and spirit in Chinese mortgage property transfer system through the normative analysis;the forth part analyses the effects and disputes of the parties involved in the mortgage transfer system of our country in detail by combining the theory and the judicial practice,based on the previous analysis;finally,the last part is about putting a review of the Article 191 of the Real Right Law,discussing the rationality and shortcoming of our current legislation,and then try to put forward a way to balance the interests of all parties.In the thesis,a point between the Civil Code compiling and the related study of real right law theory is to be found when two of them both develop.The thesis not only tries to make the mortgage property transfer system of our country become more and more reasonable and effectively used in the judicial practice,but it tries to achieve the balance of interests of each party.