Transfer Of Collateral And Its Restrictions

As a kind of security right not to transfer possession,the mortgage right is widely used in the market economic life.During the duration of the mortgage,whether the mortgagor can transfer the subject matter of the mortgage,this legal system involves the legal interests of the parties of the mortgagee,the mortgagor,and the buyer of the subject matter.Article 191 of the Property Law of the People's Republic of China does this.There are clear rules.This article stipulates that if the subject matter of the mortgage is transferred,it must be settled or deposited in advance by the transfer price;it must be approved by the mortgagee.This practice of strictly restricting the mortgagors from disposing of mortgage objects as owners is not only not the same as the practice of most countries in the world,but it is also criticized by the vast majority of jurists in China.Judging from the effect of judicial practice,the flaws in the article are even more exposed.Many courts have interpreted this article differently,resulting in the occurrence of “different judgments in the same case”.At present,when the compilation of the Civil Code is in progress and many of them involve the amendment of the Property Law,core clauses like this will obviously be rebuilt in the Property Law.Understanding the relevant issues in the system of the transfer of collaterals plays an important role in how we can rebuild the article.This article will study the system of the transfer of mortgages from the following aspects: In the first part,the author summarizes China's development process of the transfer of collaterals and its restrictions,and concludes that China's attitude toward the transfer of collaterals is strictly limited to gradually relaxing.,and return to the restricted period.The change of law must be related to its legislative background.Through an analysis of the attitudes toward the transfer of collaterals in various periods,we can find out the attitudes that we should hold about the transfer and restriction of collaterals in the present era;The second part mainly introduces judicial decisions relating to the system for the transfer of mortgages,classifies,summarizes,and summarizes relevant cases.First,we summarize the cases of the same cases,then compare the results of their judgments and find the same cases.Different referees' results will also appear,and on the basis of the results of their judgments,they will find that the phenomenon of “different judgments in the same case” is due to differences in the interpretation of Article 191 of the “Property Law” by various courts.The attitude of the transfer of collateral,the effectiveness of the mortgage contract,and different views on the ability to track mortgage rights.These different views are pre cisely the dilemmas in the application of judicial practice in Article 191 of the Property Rights Law.By analyzing various cases,it is helpful to provide some opinions for the amendment of Article 191 of the Property Law to make the article more applicab le.In judicial practice.Through the analysis of the second part of the case,the third part of the paper is mainly from the case analysis of "Property Law" 191 in the application of the deficiencies,such as the nature of the consent of the mortgagee has not been determined,"dating and early discharge system" in practice Insufficiency in application and the lack of the ability to track down mortgage rights,etc.Finally,on the basis of a comprehensive analysis of legislation and practice,the paper put forward some suggestions on the improvement of the system of the transfer of mortgages and their restrictions,such as the attitude towards the transfer of mortgages should be free.At the same time,the transfer of mortgage rights and the introduction of mortgage rights,and at the same time the opportunity for the compilation of the Civil Code,the reconstruction of Article 191 of the "Property Law" is also necessary,this article also based on the analysis of the article proposed some amendments.