The Protection Of Buyers' Benefit In Mortgage Transfer

In the process of collateral transfer,there is a natural conflict of interest between the mortgagee,the mortgagor and the buyer.The legislators of China regulate the transfer of collateral from the perspective of protecting the mortgagee.The mortgagee exercises the mortgage,the buyer of the collateral will lose the ownership of the collateral,and it is difficult to recover the transfer price from the mortgagor.In judicial practice,because the referee has different opinions on the focus of the dispute,the buyer will be subject to great risks.The security of the transaction of collateral transfer is difficult to guarantee,and the existence of the mortgage system is also controversial.Therefore,this paper studies the method of protecting its rights and interests from the perspective of the buyer,and realizes the function of the mortgage system by realizing the balance of interests of the three parties.This paper is divided into four parts: The first part selects the case,analyzes the different judgments of the court on the focus of the collateral transfer dispute in the judicial application,and clarifies the lack of protection of the buyer's rights and interests in judicial practice.The second part studies the experience of protecting the rights and interests of foreign buyers,in order to draw on the relevant systems to propose the protection of the rights and interests of buyers under the current laws of China.The third part analyzes the existing system of protection of the collateral buyer's rights and interests in China.Because the applicable space of the existing system is limited and it is difficult to play its role,it is necessary to make further suggestions from the perspective of interpretation.The fourth part is based on the above research,to construct the path of protection of the buyer's rights and interests in the transfer of collateral.It is clarified that the mortgagee agrees to the legal nature of the collateral transfer and determines that the contractual effect of the collateral transfer is not affected without the consent of the mortgagee.The collateral buyer can claim the breach of contract against the mortgagor based on the collateral's fundamental breach of contract.The change in the collateral transfer right agreed by the mortgagee is valid,and the essence of the alternative settlement system is determined.At present,China's judicial application of collateral transfer is chaotic,and the theory is not uniform.Many scholars have carried out institutional design from the perspective of guaranteeing mortgagee owners,completely ignoring the protection of the rights and interests of buyers.From the perspective of analyzing existing theories and current systems,proposing rights protection proposals,using economic rational human tools to qualitatively analyze the collateral transfer system,and cutting through the new perspective to study the balance of interests in collateral transfer,in order to realize the basic functions of the mortgage system..