Defects And Optimization Of The Mortgage Transfer System In Article 191 Of The Property Law Of China

Article 191 of property law of our country stipulates the transfer system of mortgaged property under the condition that the mortgagee agrees or disagrees.In this paper,the author mainly discusses how to understand the institutional provisions of article 191 of the property law,the impact of the transfer of mortgaged property on the preservation and realization of the right to mortgage,the advantages and disadvantages of the transfer of mortgaged property and the amendments proposed in article 191 of the property law.First,let's talk about the understanding of article 191 of the property law.In terms of ownership,whether the mortgagee agrees to transfer does not affect the validity of the transfer contract,but only affects the transfer of the property.In addition,in the second paragraph of article 191 of the property law,"the assignee pays off the debts on behalf of the mortgagee to eliminate the mortgage right" appears as an alternative to "the consent of the mortgagee",as a result," the assignee pays off the debts on behalf of the mortgagee to eliminate the mortgage right " shall only affect the assignment of the property and not the validity of the contract of the transferredproperty.From the perspective of the mortgage,the priority of the mortgage should be reflected after the realization of the mortgage,or when the exchange value of the mortgaged property may be reduced.From the perspective of creditor's right,the mortgaged property is not necessarily subordinate to the debtor,and the mortgagor shall change with the transfer of ownership of the mortgaged property.After the ownership of the mortgaged property changes,the identity of the creditor and the debtor will not change,but the mortgagor changes from the original owner to the new owner.Second,this paper will talk about the impact of transferring the mortgaged property on the preservation and realization of mortgage.The transfer of the ownership of real property will not affect the preservation of mortgage,and the incomplete registration of movable property may lead to the bona fide acquisition to block the right to pursue the mortgage.The transfer of the ownership to real property has no substantial effect on the difficulty of the realization of mortgage.Restricting it's transfer cannot guarantee the realization of the mortgage of real property.To guarantee the realization of the mortgage of real property,it is more important to simplify and improve the procedures for the realization of mortgage and balance the interests between the mortgagor,the mortgagee and the occupant of mortgage property.The third question is the advantages and disadvantages of restricting the transfer of mortgaged property.The analyses are as follows:Restricting the transfer of mortgaged property has the following advantages:firstly,it can avoid the inconvenience of the realization of mortgage caused by the split sale of mortgaged property.The common obstacle in the realization of real property mortgage under the current legal system is that the occupation of real property affects the efficiency of the realization of mortgage.I think that the law should allow the mortgagee to clear the occupation of the mortgaged property by himself after certain conditions are satisfied.In addition,the law should not restrict the auction and sale of the mortgaged property.Restricting the transfer of themortgaged property cannot effect a permanent cure to the realization of the mortgage.Legislators should constantly improve the procedures of mortgage realization to facilitate the realization of mortgage,rather than simply limit the transfer of mortgage.Secondly,it is argued that restricting the transfer of mortgaged property can prevent the reduction of debt-servicing assets.But when the mortgagor is not the debtor,the transfer of the collateral will not affect the total amount of the debt-servicing assets;When the mortgagor is the debtor,the transfer of the mortgaged property will only lead to the improvement of the debtor's ability to repay the debt.In addition,when the mortgaged property is sold at an unreasonably low price,the mortgagee can receive relief in a variety of ways.Therefore,the transfer of mortgaged property will not lead to the reduction of the debt-servicing assets,and the provisions of article 191 of the property law are not the only way to prevent the transfer of mortgaged property at unreasonable low prices.The disadvantages of restricting the transfer of mortgaged property are as follows: first,the view of restricting the transfer of mortgaged property fails to truly understand the interest of the mortgagee.The interest of the mortgagee is the right of priority of compensation for the exchange value of the mortgaged property.The exchange value of the mortgaged property and the transfer of the mortgaged property belong to different categories.The transfer or non-transfer of the mortgaged property and the consideration of transfer cannot substantially affect the exchange value of the mortgaged property itself.Realize mortgage right ahead of the expiring date,pay off debt ahead of the due time,these do not belong to the right that mortgagee ought to enjoy,what mortgage itself secures is right of priority of the likelihood interest that gets compensation to mortgaged property,it should not be protect as inevitable interest.Once the protection of one party's rights breaks through the necessary limits,it will cause damage to the rights of other parties.Secondly,the practice of restricting the transfer of mortgaged property will also produce the following side effects,including :(1)the unfair allocation of risk.The business risk that should be borne by the mortgagee is transferred to the mortgagee;(2)damages the maturity y benefit ofthe mortgagor's and causes the idle capital;(3)confuse the identity of the mortgagor and the debtor,and as a result restrict the mortgagor as the debtor;(4)it violates the meaning of the establishment of security property right and fails to make the best use of it.In short,there are many disadvantages to restricting the transfer of collateral,and the benefits can be achieved by other more reasonable alternatives.Finally,I think that the provisions of article 191 of property law can be amended as follows.First,the transfer of real property mortgaged property do not need the "consent" of the mortgagee,but it is necessary to "notify" the mortgagee.The transfer of movable mortgaged property requires the "consent" of the mortgagee,otherwise the transfer is invalid.Secondly,I think that we can do some supporting work in the following aspects,including perfecting the preservation system of mortgage,perfecting the realization system of mortgage and perfecting the elimination regulation of mortgage.