Discussion On The Mode Transformation Of Collateral Transfer

Mortgage is an important form of guarantee,characterized by the fact that the mortgagor has the possession,use,profit and disposition of the collateral which is the guarantee of funds at the same time.So,can the mortgagor be free to transfer the collateral based on his ownership of the object? The legal regulation of the collateral transfer model is related to the protection of the interests of the mortgagor,the mortgagee and the assignee,and is closely related to the value of the collateral and the value of the mortgage system.Throughout the international legislation,the legal regulation of the transfer of collateral mainly has a free transfer mode and a restricted transfer mode.In this paper,we analysis of the two transfer modes,combined with China's current legal model of collateral transfer.By considering the legal concept,balance of interests,legislative purposes and practical effects and other considerations,we can try to find out China's collateral transfer model should choose.This paper expounds the free mode and the restriction mode of the collateral transfer,analyzes the institutional disposition and the interest consideration of the two transfer modes,and analyzes the "no-easing-relative freedom-restriction" of the collateral transfer system in our legislation "Evolution is introduced.On the basis of this,this paper analyzes the current restricted transfer mode in our country,mainly takes Article 191 of the Property Law as the object of analysis,and analyzes the transfer mode and the protection of the rights of the parties in the Article 191 of the Property Law from the perspectives of academic theory and judicial practice Elaborated.And then further pointed out that China's current restrictions on the transfer of the existence of the shortcomings of the model: the legal violation of the principle of freedom of private law and the principle of freedom of ownership;interests of the existence of imbalance and restrictions on the use of the actual operation of the existence of differences in judgment,the mortgagee agreed to the law The consequences are unknown and the party's abuse of rights.Finally,through the theoretical circles on the choice of free mode and limit the way to compare the different views,clear transfer mode selection should consider the balance of interests,make the best use and the interests of the community as a whole three aspects.And from these three aspects,that China's collateral transfer legal regulation should be limited by the transfer model to the free transfer mode conversion.