The Rules Of Transfer Of The Mortgaged Property

Because of non-transfer of possession,the mortgage system functions effectively in financing,while leds to some problems due to the fact that the mortgaged property is easily transferred by the mortgagor.The legal relationship involved in the transfer of mortgaged property is more complicated than the general transfer of property,and the controversy focuses on the effectiveness of the transfer of mortgaged property,whether the mortgagee can exercise the mortgage right after transfer,which indicates the conflict of interests of the mortgagor,the mortgagee and the purchaser.The transfer system of mortgaged property has been stipulated in four statutes in sequence,and the attitude to the transfer has changed accordingly,which has also led to different understandings of the transfer rules both in academic circles and practice.Taking the Article 191 of the Property Law as an example,some people think the Article 191 strictly restricts the transfer of the mortgaged property,and constructs the subrogation rules for the transaction fees;while some people proceeded with the concept and basic principles of mortgage right,and interpreted the Article 191 from the free standpoint.This paper intends to discover the disputes after sorting out the legislation and judicial status about the transfer of the mortgaged property,then clarify the legal relationship of the parties involved in the transfer of the mortgaged property,and finally interpret the Article 191 of the Property Law according to the current social situation and measurement standard of the interests of the parties.Details as follows:The first part mainly sorts out the legislative evolution and judicial status.Regarding to the transfer of the mortgaged property,the legislative attitude from restriction to relaxation and to restriction,and has arisen controversy focused on the effectiveness of the mortgage's transfer,whether the mortgagee can exercise the right after the mortgaged property being transferred.In the judicial practice,the courts have different opinions on the Article 191.So it is important to response to these disputes and to clarify the specific meaning of the Article 191.The second part is to analyze the legal relationship of the parties involved in the transfer of the mortgaged property by discussing the respective legal effects of the establishment of mortgage right and the transfer of the mortgaged property.After the right of mortgage is established,only the transfer behavior does not affect the interests of the mortgagee can the mortgagor transfer the mortgaged property free.Because in the real estate and movable property,the protection of the recourse of mortgage right is different for the mortgagee,the transfer of movable property should be restricted,but the restriction must be reasonable.After the transfer of the mortgaged property,the mortgage right follows the property,and the registered mortgage right can act against the purchaser.If the mortgage is unregistered,then the mortgage right shall not challenge the purchaser who is innocent about the mortgage.At this time,the transfer price shall constitute a subrogation of the mortgaged property.The third part is to interpret the Article 191 of the Property Law in combination with the objective interpretation of the law.Due to the improvement of the mortgage disclosure system and the risk awareness of the transaction subject,the recourse of mortgage right and publicity confrontation rules can better protect the parties' expectations of the transaction.It is not appropriate to regard the Article 191 as an mandatory provision which requiring the transfer must be approved by the mortgagee.the Article 191 is aimed to prohibit the mortgagor from maliciously evading the obligation of mortgage.When the mortgagee agree to transfer the mortgaged property,it means that the mortgagee agree to realize the mortgage right in advance.The last part is to discuss the deficiencies and improvement measures of chattel mortgage.There is an obviously contradiction between the registration of mortgageright and the credibility of movable property's possession,which makes the disclosure system of chattel mortgage have natural defects.Based on the security both in guarantee and transaction,in one hand,the disclosure system of the chattel mortgage should be improved by means of registration and engraving of the mortgage mark.In the other hand,the scope of the mortgaged property must be limited reasonably.