Research On Validity Of Entrustment Of Hypothec

Against the background of the imperfect real estate registration system in China,due to the limitation of the registration authority on the scope of subjects that can be registered as mortgages,the creditors,in order to guarantee the realization of their claims,have agreed on behalf of the principals that meet the registration requirements of the registration authority to handle mortgages Rights registration,so that as a nominal mortgagee instead of creditors to hold mortgage rights.Judicial practice has different opinions,and even opposite judgments have been made in similar cases with the same legal provisions.The author intends to analyze the effectiveness of the mortgage agreement from the perspective of the behavior of creditor's rights,build the subordinate property of the mortgage on the basis of this,and try to improve the rigid understanding of the property right to explain the need for the protection of real creditors from the perspective of benefits Analyze the justification of protecting real creditors from a balanced perspective.When there is no third party's interest involved,the effectiveness of real creditors' priority for collateral should be affirmed.From the perspective of private law autonomy,holding the mortgage right does not break through the existing legal framework.It should be affirmed that the parties are punishing their rights.Private law autonomy is often in their best interest,"because they are the best in their own interests.Judge ".From the perspective of real estate registration to protect the interests of third parties and maintain transaction security,it draws on the dichotomy of whether a third party is involved.The academic circles have transformed the issue of mortgage right from the issue of mortgage right independence.Judging from the latest Nine Minutes released,judiciary still insists on attributes as the basic attributes of mortgage rights.Under the premise of insisting on the dichotomy of the property debt system in China's mainland and having a causality,while drawing lessons from comparative law,we must also take into account the actual conditions in the mainland to balance the interests between the parties and achieve the goal of fairness and justice.Mortgage holding is different from falsely set claims,which is supported by real principal claims.By reasonably constructing its subordinate attributes,it is recognized that creditors enjoy mortgage rights to meet legality and meet the requirements of fairness and justice.It has the concept of abandoning betrayal.The thesis is divided into three parts.The first part discusses the determination of mortgage rights.Holding the mortgage right involves the relationship between the internal agreement and the external agreement.Internally,the mortgage registration and the actual ownership of the mortgage are handled through the agreement on behalf of the holder.The external party signs the mortgage contract with the mortgagor and handles the mortgage registration in the name of the holder..From the perspective of judicial practice,combined with related doctrines,the denial of the false representation of conspiracy is difficult to constitute a law-breaking act because of its legitimacy,and it is not necessary to introduce a negative trust to deny its effectiveness.It should be analyzed from the perspective of general legal acts,and its effectiveness is affirmed without violating laws and regulations.Whether it can achieve the legal effect that its agreement intends to achieve still needs to meet the requirements for changes in rights.The second part considers the legality of mortgage rights.Based on the consideration of the subordinate property,the subordinate property of the mortgage right and the subordinate property of the mortgage contract and the main credit contract were not violated in the case of mortgage holding.Under the premise of affirming the existence of a true sovereign creditor's right,by constructing a substantive relationship between the real principal creditor's right contract and the registered mortgage contract,the registered mortgage is attached to the real principal creditor's right,and the mortgage holding is still subject to compliance.The security-type mortgage of the property should be positively evaluated.At the same time,consider the "holding" of the mortgage rights formed by the transfer of the mortgage rights and the retention of invalid registrations,and the protection of real rights holders in the registration of mortgage rights has not been handled due to reasons of the registration department.The third part considers the protection of the interests of third parties.The real creditor in the holding of the mortgage is not registered on the register.Based on the two-tier structure of the mortgage,the registration of the mortgage involves the consideration of the interests of the mortgagee,the general creditor,the person claiming the benefit of the mortgage,and the person who registered the transfer of the mortgage based on trust.The right holder registration is only for the person who trusts the mortgage registration and deals with the nominal mortgagee.Based on the strict requirement of the property,the good faith acquisition of the mortgage will be circumvented due to the defect of the bond.Therefore,in this regard,the holding of the mortgage right should not deny the creditor's mortgage right because of the loss of the interest of the third party.Regarding the protection of anonymous shareholders in Anglo-American law,the introduction of a fiduciary trust can achieve a balance of interests of the parties and will not cause excessive interference in the autonomy of private law.