Research On The Transfer Rules Of Real Estate Mortgage Right

China’s current judicial adjudication has two views on the determination of the transfer of creditor’s rights and the mortgage of Chinese real estate.One view is that the transfer of creditor’s rights and the transfer of the mortgage of Chinese real estate should be strictly in accordance with Article 9 of the “Property Law”.Another view is that the transfer of the mortgage of the real estate mortgage is based on legal provisions(Article 192 of the Property Law stipulates that the mortgage right is transferred with the debt),so it belongs to the "legal rights" in Article 9 of the Property Law.With the exception of the regulations,the transfer of real estate mortgage rights is not subject to registration as an effective element.It can be seen from this that the current rules on the transfer of real estate mortgage rights in my country are not perfect,and there are loopholes such as unclear requirements for the transfer of real estate mortgage rights and unclear transfer registration effectiveness,which has caused problems in the application of the law.The main research content of this article is the transfer model of the mortgage of the real estate mortgage and the effectiveness of the transfer registration,and then put forward suggestions on the improvement of the transfer rules of the mortgage of the real estate mortgage in my country.This article mainly uses the concept analysis method,legal interpretation method and comparative analysis method.The first part analyzes the theory involved in the transfer of real estate mortgage rights,summarizes and analyzes the characteristics of real estate mortgage rights transfer,the two reasons for real estate rights changes,and the three types of effectiveness of real estate registration in my country.The second part summarizes the status quo of the current transfer of China’s creditor’s rights and the transfer of real estate mortgage rights,and further extracts the main problems of the rule at present-"Legacy’s " effective entry " for the transfer of creditor’s right of mortgage of real estate," registration of transfer " " Effectiveness’ provisions are not clear ".The third part summarizes and analyzes the extra-territorial legislation.There are two main views on this rule outside the domain.The first is to use transfer registration as the effective element for the transfer of real estate mortgage rights,and the second is not to use the transfer registration as the effective element for the transfer of real estate mortgage rights.The legislative provisions are relatively clear.The author believes that no matter which rule is adopted,it is only a choice in legislation.No matter which rule mode is adopted,it is necessary to combine national conditions and actual trading habits,and finally choose the better rule mode.In the fourth part,the author believes that China should improve the rules for the transfer of creditor’s rights and mortgages of real estate in the future legislation,and fill in the loopholes of the existing legislation on this rule: In the first section of this chapter,the author mainly uses the comparison of interest measurement The method,based on the five basic considerations of mortgage rights,protection of creditors’ interests,transaction efficiency,and party autonomy,believes that China should adopt no transfer registration as an effective element for the transfer of real estate mortgage rights.The transfer of real estate mortgage rights is based on legal The effect,that is,whether the registration does not affect the assignee of the creditor’s right to obtain the mortgage of the real estate,so the future “Civil Code of the People’s Republic of China” will be further refined on the basis of Article 192 of the “Property Law” Clearly,the terms are set as " the mortgage right cannot be separated from the creditor’s right and transferred separately or as a guarantee for other creditor’s rights.If the creditor right is transferred,the mortgage right guaranteeing the creditor’s right is automatically transferred together,unless otherwise provided by law or otherwise agreed by the parties.The transferee’s right to obtain mortgage is not affected by the failure to register the transfer,but without the transfer registration,it is not possible to fight against a bona fide third party”;Transfer registration is not required as an effective element,but such transfer registration should be effective against,without registration against a bona fide third party,failure to register for transfer will have many adverse consequences on the assignee of creditors,reminding the parties of the need for timely Go through transfer registration.