The Effect Of The Transfer Registration Of Real Estate Mortgage When The Obligee's Rights Are Transferred

Right to mortgage is a very typical real right for security.In society,mortgage guarantee is favored by more and more parties to civil,and has become the common form of guarantee in social and economic life.It happens that the obligee's rights have been transferred but the right to mortgage for the aforesaid obligee's rights has not been registered.In this case,is the assignee acquired to do the real estate mortgage?Article 192 and 9 of the "Property Law" have different answers.In current law,it does not clearly describe the legal effect of transfer registration,and it also does not form a unified opinion in academia and practice.Based on the legislation and judicial practice of China,this article studies the legal effect of transfer registration,hoping to provide reference for the judgment of related cases in judicial practice.In addition to the introduction and conclusion,the article contains three chapters.The first chapter analyzes the main related judgments in current judicial practice,sums up the main differences and the core issues in the current judicial practice.At present,there are two kinds of recognition in those cases in our judicial practice.One thinks that the transfer of the real estate mortgage in needed to make the transfer registration,the other party does not think it is necessary.Supreme People's Court has made a judgment in a case,through that verdict we can know that,the right to mortgage obtained by the assignee is based on the explicit stipulation in the law,not to be re-sett based on a new mortgage contract.The assigneedoes not make the transfer registration will not result in the elimination of the real estate mortgage.In addition,the Supreme People's Court made the same judgment in many other cases.Therefore,in judicial practice,the Supreme People's Court holds that,when the obligee's rights are transferred,the transfer of the real estate mortgage does not need to make the transfer registration.Local courts have made some different cognitions about similar cases.Some courts make same judgment as the Supreme People's Court,some courts make different judgment from the Supreme People's Court.Through the study,the core controversy in current judicial practice lies in whether the transfer of the real estate mortgage needs to do thetransfer registration when the obligee's rights are transferred.The second chapter discusses the following aspects: the real estate mortgage has the subordinate in disposal,the reason for the transfer of the real estate mortgage,and the influences of the transfer registration to the transfer of the real estate mortgage.Through the study,we need to know whether the transfer of the real estate mortgage needs to make the transfer registration when the obligee's rights are transferred.Right to mortgage is a kind of real rights for security.The existence of the real rights for security is to ensure the repayment of debt,which determines the subordination of the real rights for security.Because of this subordination,the real estate mortgage should be transferredwhen the obligee's rights are transferred.The creation,change,transfer and elimination of real rights all need reasons.The reasons of change of real right can be divided into two kinds.One is according to legal acts,the other is not according to legal acts.Article 192 of the "Property Law" and article 81 of the " Contract Law " are the reasons that the real estate mortgage shall be transferredwhen the obligee's rights aretransferred.In other words,the reason of the transfer of the real estate mortgage is the law.Article 192 of the "Property Law" and article 81 of the " Contract Law " are the reasons of the transfer of the real estate mortgage.Underthis circumstances,change of real right can be made without registration.In short,when the obligee's rights are transferred,the transfer of the real rights for security does not need the transfer registration.Through the study,we can know that,when the obligee's rights are transferred,the transfer ofthereal estate mortgage does not need the transfer registration.The third chapter discusses the following aspects: the meaning of the law,thelaw theory on transfer registration,and the scope of effect of transfer registration.Exclusivity of real right requires that anyone other than the subject of rights must respect the real right.However,if a person is asked to respect other's real right,he must be available to know the ownership and the status of the real right through specific means.Otherwise,this real right has no legal effect on him.Thus,the state of real right should be made to inform others.In short,the publicity of the status of real right is the source of external effect of the real right.When the obligee's rights are transferred,the transfer of the real estate mortgage does not need the transfer registration.But without the transfer registration,the real estate mortgage does not have external effect.If the assignee make the transfer registration,the real estate mortgage he obtains should be respected by all.Consequently,the effect of the transfer registration is to make the real estate mortgage which assignee obtains has external effect.