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Research On The Legal Effect Of Mortgage Transfer In China

Posted on:2020-04-23Degree:MasterType:Thesis
Country:ChinaCandidate:X L YuFull Text:PDF
GTID:2416330596984678Subject:Law
Abstract/Summary:PDF Full Text Request
Among the many forms of guarantees of security interest,mortgage guarantee is the most typical one.Compared with other forms of guarantee,the maximum value of the system is to facilitate the market participants to invest and finance,maximize the economic benefits,and promote the best.Use,stimulate market demand and accelerate the construction of a social credit system.The original intention of its establishment is to prevent the debtor from fulfilling the debt or other reasons that may affect the realization of the mortgage.In order to protect the interests of the creditors,the legislation of our country stipulates that the creditor can have property owned by a third party other than the debtor or the debtor.(mainly involving movable and immovable property)set a restricted property(mortgage)to protect the creditor from selling the mortgaged property in the future,and the auction price will be preferentially compensated to ensure the creditor's right(because of the mortgage,it is specific The realization of creditor's rights.As a kind of right to realize a secured claim,the mortgage right is relative to the general creditor's right or property right.It is related to the balance of interests of the mortgagee,the mortgagor and the buyer(third party).The relationship of creditor's rights and the relationship of property rights have both the relativity of contracts and the secular nature of property rights.Therefore,we must see the particularity and complexity of the mortgage system,involving the interests of the three parties,and should not neglect one,but should balance the interests of all parties.It is worth mentioning that the collateral transfer system is the top priority in the design of the mortgage system,which directly affects whether the function of the mortgage guarantee system is effectively played.It can be seen that the construction of the collateral transfer system is inconceivable and needs to be integrated.The interests of all parties,starting from the overall situation,its importance is self-evident.China's multiple legislations are related to the construction of the collateral transfer system rules,but the legislative attitudes are different.Considering the transition from a planned economy to a market economy in China,the impact of the legislative background on the imperfect construction of the rule of law in the process of social development and progress,but the root cause is still inseparable from the distribution and balance of the interests of all parties in the transfer of collateral.It is related to the use of collateral and the security of independent transactions in the context of market economy.However,the legislative policy of reforming the past is not the best choice for perfecting a system.Only the legislation combining social practice can play a better role.Therefore,this paper conducts research and analysis through three typical cases,interprets China's collateral transfer system,selects the collateral transfer system that is most suitable for China's economic development,gives full play to its institutional advantages,stimulates consumption,increases social credit,and balances The interests of the three parties will play a role in making the best use of their functions and promote the steady and orderly development of China's market economy.The main content of this paper is divided into three chapters:The first chapter of the thesis starts from the three cases of the court's judgment.According to the different judgment ideas and results of the court in the collateral transfer case,it is proposed that after the promulgation of the Property Law,the court will deal with the law 191 in the trial process.There are different interpretations on how the provisions of Article 49 of the Law of Guarantee and its judicial interpretations are understood,whether conflicts and how they are applied,and there are still different interpretations of the legislative purposes of Article 191 of the current Property Law,thus resulting in very different court decisions.the result of.Through three typical cases,the author finds out the main problems in the process of collateral transfer in judicial practice,summarizes the different judgments in the three cases,proposes three controversial points,and analyzes the academic and judicial practice departments.A variety of points of view,while pointing out the problems and defects,and to elaborate and explain.The second chapter is mainly about the legal analysis of the problems and disputes in the case.From the understanding and viewpoints of the practical and academic circles,we sort out and analyze the problems in the collateral transfer system in China.The author intends to discuss from three aspects: First,the effective conditions from the establishment of the contract and the effectiveness of the mortgage.The perspective analyzes the validity of the collateral transfer contract;the second is the conflict between the practice and the academic circles on the design of the collateral transfer system in Article 49 of the Guarantee Law and its judicial interpretation,and the provisions of Article 191 of the Property Law.The third is to analyze whether the collateral transfer system stipulated in the Property Law does not distinguish whether the model of movable property and immovable property is reasonable,and analyze and analyze the three issues to clarify the disputes in the collateral transfer system in China.The third chapter mainly from the perspective of revelation and suggestion,put forward the author's point of view: in the process of collateral transfer,the contract of transfer is valid as long as it meets the conditions for the establishment of a valid contract stipulated in the Contract Law,and the mortgagor's transfer of the collateral is subject to disciplinary action.Does not infringe the mortgagee's mortgage.For the transfer of collateral,the distinction between movable property and immovable property is adopted,the transfer of real estate collateral is allowed to be freely transferred,and the transfer rule of transfer of collateral for movable property is restricted.On this basis,in the process of compiling the Civil Code of China,it provides a legislative proposal for the revision and improvement of the Property Law,in order to meet the needs of China's rapid economic development,and to make full use of the advantages of the collateral transfer system.Use to balance the interests of all parties.
Keywords/Search Tags:Collateral transfer system, Free transfer, Restricted transfer, Legal validity
PDF Full Text Request
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