Transaction Protection In The Transfer Of Chattel Mortgage

Whether the transferring of the thing with mortgage can get the positive evaluation of law or not,involves how to balance the interests of the mortgagee and the purchaser,and then affects the circulation and transaction security of the thing in the legal economic society.In the process of several major legislative amendments,the above issues are divided into different value orientations,and now take the consent of mortgagee as the evaluation standard in Article 191 of property law of China,thus forming the legal application with and without the consent of mortgagee.However,the value dispute of Article 191 has not been settled,especially in the field of chattel mortgage.Chattel mortgage,as a special case in the mortgage system,is established because of the agreement between the mortgagor and the mortgagee.In order to ensure the transaction safety,it is protected by the way of registration antagonism.It can be said that the balance of interests in the transfer of collateral will make people doubt the legitimacy of the restriction on the freedom of disposition of the mortgagor in Article 191 because of the existence of the registration confrontation system.In view of the above problems,Chinese scholars have done a lot of work on the theory of interpretation.There are also different opinions in practice,which leads to a large number of judgments with the same casebut the left judgment result.Such a situation challenges the unity of the application of property law in China.Therefore,it is necessary to go back to the theory of property law,start from the law itself,find out the parts that agree with each other through the reconstruction of the relationship between legal norms,and then form the opinion of legal application,resolve the disputes,and balance the interest relationship between the mortgagee and the purchaser of the mortgaged property.At present,during the compilation of the draft of the civil code,the newly issued draft of the civil code also reorganizes the application of mortgage transferring.Based on the evaluation of the current law,this paper discusses the reform of the draft of the civil code.This paper attempts to construct the application of the reasonable mortgage transfer system,and through the legal interpretation to bridge the contradiction,to eliminate the application of the unspoken or controversial part,in order to provide reference for the future civil code internal rules in the interpretation of the dispute.This paper is divided into four parts:The first part summarizes the system of chattel mortgage and transfer of collateral.This paper briefly introduces the evolution process and attitude of Chinese mortgage transferring system,so as to lay a foundation for later research.The second part is the analysis of the application of law to Article191 of the property law.Due to the vague expression of Article 191,such as how to determine the effect of real right and the effect of mortgage contract without the consent of mortgagee,whether the transferred property is still subject to the burden of mortgage after the transfer of mortgage,whether the purchaser has other relief channels besides the relief stipulated in Article 191,the article itself does not give adetailed interpretation.This chapter discusses the legal effect of the mortgagee when he agrees to transfer,the real right effect and the creditor's right effect when the mortgagee disagrees,and the relief right of the purchaser when the mortgagee disagrees.Through this part,we can find that although Article 191 adopts the attitude of restricting circulation,many of its legal thoughts can also be used for reference and development in the draft civil code.The third part mainly expounds the subjective and objective elements and special circumstances of the purchaser's obtaining the ownership of the mortgaged property without burden.Whether the purchaser can obtain the ownership of the purchaser depends on the consent of the mortgagor to a great extent.In order to protect the transaction security,the good faith acquisition system is discussed in this applicable space.This part is based on the necessity of application and the right of claim of acquisition in good faith,and considers that 188 articles should be taken as the basis to focus on the subjective and objective elements of application,as well as the special protection of mortgage in special circumstances.The fourth part comments on the rules of modifying the system of transfer of mortgage in the property law in the draft of civil code,and discusses articles 404 and 406.Article 406 hold the attitude of pursuing and effectiveness of mortgage.However,in terms of specific application,the details of the notification obligation given to the mortgagor are not provided.What is the nature of the mortgagor's request for payment of money and how to exercise it are not specified in detail.Article 404 sets up the exclusion of registration confrontation of chattel mortgage,that is,it is not allowed to confront the buyer who has paid a reasonable price and obtained the mortgaged property in the normal business activities.Although many scholars have put forward criticism,this paper holds that it is worth appreciating.It is of great benefit to the transaction safety in the transfer of chattel mortgage logistics.