The Study On The Transfer Regulation Of The Mortgaged Property

China's social economy is developing continuously,but the credit transaction system is still being established.How to ensure that the mortgagee and the mortgagee can exercise their rights effectively by establishing effective mortgage rights is a problem that the legal circles have been thinking about.Mortgage transfer system has always been the core content of mortgage.Its purpose is to promote the development of transactions and circulation of goods,ensure that mortgage can play its due positive role,and protect the legitimate rights of mortgagee,mortgagor and assignee in transactions.The transferring system of mortgaged property takes the transferee into consideration.Mortgage is not only related to the interests of mortgagee and mortgagor,but also to the legal relationship between them.Article 191 of the Property Law is an amendment to the transfer rules of mortgaged property originally determined by the Guarantee Law and its judicial interpretation.The original intention of legislation is mainly to protect the interests of the mortgagee,but the newly established rules on the transfer of mortgaged property may be biased,which has caused considerable controversy in both civil law theory and judicial practice.The focus of the controversy is mainly on whether the transfer contract is valid without the consent of the mortgagee,how to determine the validity of the transfer act,whether the clause negates the real right nature of the mortgage,whether it denies the retrievability of the mortgage,whether the "non-transferable" stipulated in this law is a compulsory provision of validity,and whether it imposes unnecessary restrictions on the ownership of the mortgagee.In social practice,the problems such as the validity of the contract for the transfer of mortgaged property without the consent of the mortgagee,how to determine the validity of the change of real right,whether the mortgagee should have recourse effect on the mortgaged property after the unauthorized transfer of mortgaged property,and so on,torture the wisdom of the legal community,and there is no unified opinion in practice.These problems need to be solved urgently.In order to solve these problems,it is necessary to clarify the validity of the act that the mortgagor agrees to transfer the mortgaged property with the transferee without authorization.Distinguishing chattel real estate and improving the validity of the mortgager's unauthorized transfer of mortgaged property with the transferee.Establish the system of the recourse effect of mortgage right after the transfer of mortgaged property.