On The Transfer Of Collateral

The 114 high court trials and above the second-instance referee since the implementation of the Property Law show that the effectiveness of the collateral transfer contract has been basically correctly determined in the current practice,but the interpretation of the validity of the contract generally passes the Contract Law.The provisions of Item(5)of Article 52 and the mandatory provisions established in the Judicial Interpretation II of the Contract Law are carried out.The correct result does not mean that the interpretation path is correct,the substantive and academic recognition of the mandatory provisions,the normative function There is still room for improvement,and the existing explanation path has doubts.Secondly,in practice,whether the mortgagee's consent and consent mean that the mortgage is waived,and whether the transfer price is paid off to the creditor is not completed.Clear.On this basis,we first examine the typical regulatory methods of the collateral transfer system in the civil law system.Thirdly,the investigation and combing of "history-comparison" must finally return to the relevant issues of Chinese law.On the one hand,China has been arguing over the collateral transfer system for several years.On the other hand,the Chinese law has passed the legislative acceptance and the legal texts have more empirical norms for the transfer of collateral.This paper attempts to focus on the collateral transfer system.China's empirical law from the "General Principles of Civil Law",guarantee law","judicial interpretation of the guarantee law" to the property law ups and downs,as a standard resource,refining the position of the collateral transfer system in the Chinese law.Under the current concept system of debt and dichotomy,this paper discusses the creditor's rights behavior in the transfer of collateral,that is,the effect of the transfer contract,attempts to discuss the compulsory order,legal norms,and the power to dispose of the effect of the transfer contract,and obtains the above factors for the transfer contract.No effect on effectiveness.Thirdly,we will explore the impact of property rights on the changes in property rights.Finally,it discusses the elimination of the mortgage right on the object,that is,under what circumstances,the transferee obtains the unburdened property,whether the mortgage right has a legitimate basis,whether there is a conceptual basis and a normative basis,and distinguishes between movable property and real estate.