Research On Legal Issues Related To Pawn Mortgage In Pawn Contract Disputes

With the rapid development of China's economy after the reform and opening up,pawnbroking,as a folk representative financing method,has been favored by individuals and enterprises for its advantages of simplicity,speed,convenience and high financing efficiency.However,some customs and regulations of pawnbroking have some conflicts with the laws such as “Property Law”,“Guarantee Law” and “Contract Law” due to the lack of support in the superior law.With the development of pawnbroking industry,there is a big difference between the present pawnbroking and the past pawning.In the past,there were both chattel pawn and real estate pawn.Chattel pawn,which was in the main position,followed the principle of “barter for money”,while real estate pawn was also called “pawn”,which mainly aimed at the farmland and land.However,due to the rapid economic development of modern pawn business,especially the development of China's real estate industry,more and more real estate mortgage pawn business appears,such as housing and land,even has exceeded movable property pawn and become the main pawn business.The pawn mortgage business belongs to the real estate mortgage security stipulated in the guarantee law,whose essence is the real property security,a kind of right security,and this right is called mortgage in modern law.The establishment of mortgage in our country is clearly stipulated in the Guarantee Law.If the mortgage wants to be established,it must be registered in the relevant departments.The establishment of real estate mortgage is registered in the relevant departments as an effective element.But pawn mortgage business does not make the regulation that must register to real estate mortgage,and pawn contract is not a simple contract of creditor's rights or real rights,it is a kind of "mixed" or "comprehensive" contract that combines loan contract relationship,guarantee contract relationship and real rights relationship as a whole.Hence,the validity of pawnbroking contract and the establishment of legal relationship of pawnbroking are controversial in theory and judicial practice.In this thesis,the author,under the background of pawn mortgage business in the modern “pawn management methods”,will probe into mortgage-related legal issues from the perspective of three cases pawn,and finally combined with judicial practice and practical needs to give pawn legislative recommendations and to contribute to judicial practice and legislation.In addition to the introduction and conclusion,the text is divided into the following three parts :The first part,introduced by three cases of pawnbroking disputes,introduces the basic situation of the cases briefly,compares judgment basis and viewpoints of the court in the trial of unmortgaged,analyzes the pawnbroking disputes in the legal issues related to the causes of the mortgage,and summarizes the relevant focus of controversy for the case.The second part is the jurisprudential analysis of the controversial focus of the cases.This part mainly through to pawn mortgage and pawn contract nature and pawn legal relationship related theory research,analysis pawn mortgage registration or not on the effectiveness of pawn contract and pawn mortgage registration on the impact of legal relationship,finally pawn mortgage contract disputes applicable to what kind of law to study.The third part is the conclusions and recommendations of the thesis.Through the induction of the focus of the cases in the first chapter and the jurisprudence analysis of the focus of the cases in the second chapter,the author gets the position of pawn mortgage in pawn transaction,that is,pawn mortgage is the necessary condition of modern pawn transaction.Finally,the author gives his own suggestions from the legislative point of view.