A Study On Liable Repledge

The rapid development of the market economy brings not only economic benefits,but also the legal problems of the transfer of responsibility from the pursuit of economic benefits and the purpose of ma:king the best use of goods.The transfer of the pledge to the third party without the consent of the mortgagor is the establishment of a new system of pledge.In practice,in order to guarantee his debt to the third party,the mortgagee will take possession of the pledge to its creditors more common phenomenon,at this time on the same pledge at the same time there is a pledge and a pledge.Through the collection and arrangement of the effective adjudicative documents concerning the disputes over the transfer of responsibility,it can be found that in the judicial practice,there is a phenomenon of different judgments in the same case in the settlement of the disputes over the transfer of responsibility,or the application of the legal norms of the transfer of responsibility is deliberately avoided.hold a conservative attitude to the responsibility of the transfer of pledge,negative responsibility of the effectiveness of the act.By combing the literature on the study of responsibility transposing,the theoretical circle has different opinions on the nature,the effect of behavior and the constitutive elements of the transfer of responsibility.So far,it has not been possible to reach a more unified point of view.The phenomenon of different judgment in practice is mainly due to the defects of legislation and the complexity of theory.On the one hand,both the interpretation of the guarantee Law and the Real right Law have some provisions on the transfer of responsibility,and they are different,which leads to the difference between different courts in choosing the applicable legal norms.On the other hand,there are still disputes about the interpretation and concrete application of the transfer of responsibility in the legal norms,which leads to serious differences in the understanding of the same article in different cases.It can be seen that the responsibility transfer system is now in an awkward predicament both in academic research and in judicial practice.The theoretical research on the problem of responsibility transposing in practice plays an important role in perfecting the system of responsibility transposing in our country.The study of the problem of responsibility transposing begins with the normative level and analyzes the present situation of the relevant provisions of the current legal norms on the responsibility transposing according to the characteristics of the responsibility transposing.Article 94 of the Judicial interpretation of the Guaranty Law negates the act of unauthorized transfer of pledge by the mortgagee,and only approves the right of pledge with the consent of the mortgagor.Article 217 of the Law on Real Rights pro:rmulgated in 2007 does not clearly stipulate whether the mortgagor enjoys the agreed or statutory right of pledge,but only regulates the obligation of the mortgagee to keep the pledge and the liability for damages of the pledge.Because the expression of this article is ambiguous to the responsibility transfer,the theory and practice circles both have the view that the article is related to the responsibility transfer,but through the method of legal interpretation,the article is analyzed.It can be concluded that Article 217 of the real right Law is the legal norm for the adjustment of the transfer of responsibility.By collecting and sorting out the relevant judicial documents on the dispute of transferring responsibility to quality,we can find that in judicial practice,different courts have great differences in determining the nature of transferring responsibility to quality.Some courts have identified the typical transfer of responsibility between the parties as a borrowing act with pledge content;In some cases,the court understands the act of transferring responsibility to pledge as the transfer of pledge by the pledgee.Not only in the practical field,but also in the theoretical field through combing the relevant research documents,there are also differences in the recognition of the nature of responsibility transformation.Through the analysis and demonstration of various theories,the nature of the transfer of responsibility should belong to the pledgee to jointly pledge his creditor's rights and pledge rights to the debtor to the pledgee.In determining the validity of the act of transferring responsibility to quality,some courts in practice have chosen to bypass the discussion and directly apply the provisions of Article 217 of the property law on compensation for damage to quality.Some courts interpret Article 217 of the property law as affirmation of the act of transferring responsibility to pledge,and hold that the pledgee's act of transferring pledge without the pledgor's consent is valid.Most of the remaining judgment documents deny the validity of the act of transferring responsibility to quality according to the provisions of Article 94 of the Interpretation of guarantee law,and conclude that the contract of transferring quality is invalid.Such an obvious phenomenon of different judgments in the same case reflects the difficulties encountered in the dispute of transferring responsibility to quality and the lack of theoretical support.Through the theoretical research on the effect of transferring responsibility to pledge,it can be concluded that the pledgee's act of transferring pledge without the pledgor's consent is effective and the contract of transferring responsibility to pledge has legal effect.Finally,there are different views on the content of the relationship between responsibility and quality in the theoretical circle.Through the analysis and demonstration of various viewpoints,after the establishment of the transfer of responsibility,the debtor shall have the obligation to pay off the debts to the transfer pledgee first Regarding the distribution of compensation liability for damage to the pledged property,except for the case where damage to the pledged property will still occur even if the pledged property is not transferred,it should be distinguished whether the cause of damage to the pledged property is force majeure.If the pledged property is damaged due to force majeure,the pledgee shall compensate the pledgor with its own responsibility according to Article 217 of the Property Law.On the other hand,if the pledged property is damaged or lost due to non-force majeure,the pledgee and the pledgee shall be jointly and severally liable to the pledgor according to the degree of fault of the pledgee.If there is any fault due to improper safekeeping but not due to the reason of the transfer of the pledgee,the pledgee shall have the right to claim compensation from the transfer of the pledgee after assuming the liability for compensation;If the pledgee has no fault,he shall not be liable for damages.When the creditor's right of the pledgee expires but the creditor's right of the transfer pledgee is not expired,the transfer pledgee has the right to receive the repayment of the debtor and return the pledged property,and the transfer pledgee and the pledgee negotiate with each other to deposit the repayment or pay off in advance.Since the amount of creditor's rights guaranteed by the transfer pledge shall not exceed the amount of creditor's rights guaranteed by the original pledge,after the transfer pledge's creditor's rights are eliminated,the pledgee still has part of the creditor's rights and has the priority to be compensated for this part of creditor's rights.