Research On The Transfer Rules Of Movable Property Mortgage In The Era Of Civil Code

China’s legislation on the transfer of chattel mortgages has gone through the "Civil Opinions" of the Supreme Court,to the "Guarantee Law","Judicial Interpretation of the Guarantee Law",to the "Property Law",and then to the "Civil Code".It is also wandering between the prohibition of transfer,the restriction of transfer,and the free transfer.In addition,the academic and judicial practice circles also have different opinions on the transfer of chattel mortgages.The opinions are divided,which makes the disputes about the transfer of chattel mortgages common in practice.This is to a large extent.Attributable to the vagueness and inconsistency of the transfer rules of movable mortgages.Therefore,it is urgent to combine the current status of my country’s chattel mortgage rules,analyze and find the shortcomings,and conduct theoretical demonstrations.At the same time,combined with the effective experience at home and abroad,under the framework of the "Civil Code",explore the better rules for the transfer of chattel mortgages.And put forward specific rules that can be applied to our country’s current practice.The main content of this article is as follows:In the first part,through the status quo and problems in the legislation and judicial practice of the transfer of chattel mortgages,the inadequacies of this rule are found.Macroscopically,the defects of the legislation are mainly reflected in.1.The expression of the law is vague.The content of the statute is vague,and there is a situation where a statute can be interpreted in multiple ways.2.The legislative attitude is lingering.However,the relevant legislation on the same topic of the transfer of mortgaged property has very different provisions,and the legal provisions of different provisions coexist.At the micro level,the legislative flaws are mainly reflected in.1.It is unclear whether the movable property mortgage can be freely transferred.2.The procedures for the transfer of chattel mortgages are missing.3.There are incomplete regulations on the legal effects after the transfer of the chattel mortgage.The dilemma of the transfer of chattel mortgages at the judicial level is mainly the inconsistent understanding and application of legal provisions by judges,which can easily lead to "different judgments in the same case" in judicial practice.In the second part,through the sorting,summarization and analysis of the current academic research related to the transfer of chattel mortgages,the defects and deficiencies are found.On this basis,the current situation of practice and theoretical research is integrated to derive the source of the dispute and Propose the due choice of the rules for the transfer of movable property mortgages.The existing doctrines are mainly divided into three categories: the doctrine of prohibition of transfer,the doctrine of restricted transfer,and the doctrine of free transfer.Through sorting out and analyzing various theories,the legal basis and deficiencies of each are obtained.Finally,it can be seen from the comprehensive practice and theoretical status of the transfer rules of movable property mortgages that the root cause of this series of disputes and discussions lies in the misalignment of the publicity of movable property ownership and the publicity of mortgage rights in my country,which has caused the mortgagee and the buyer.Conflict of interest.Based on the principle of balance of interests,combined with the background of the times,the basic theory of the transfer rules of the movable property mortgage should be chosen as the support of the free transfer theory.The third part,this is a theoretical argumentation on the rules of free transfer of chattel mortgages.It is mainly based on the following three aspects: First,from the perspective of maximizing the utility of the balance of interests,combining the consideration and balance of multi-party interests,and maximizing the utility of the property,it is demonstrated that the rules of free transfer of movable mortgages can achieve a relative balance of interests and ensure transaction security.Stability,in order to demonstrate that the movable property mortgage has a freely transferable argumentation basis.The second is to demonstrate the normative basis for the free transfer of movable property mortgages based on the principle of property rights publicity,the effect of property rights and the unified registration system of movable property security rights.The third is to proceed from the principle of law and economics that standard procedures can save costs,to demonstrate the meaning of clear rules,and to support the procedural value of the rules for the free transfer of chattel mortgages.The fourth part,under the system of the Civil Code,explores the application of the rules for the transfer of mortgages on movables,and on its basis,based on the theoretical justification of the rules for the free transfer of mortgages on movables,and then derives its specific application situations.This part is mainly divided into two aspects to discuss.First,it sorts out the differences in the rules of the "Civil Code" on the transfer of mortgages compared with the previous legislation and compares the differences to get its innovation.Secondly,by starting from the three groups of legal relationship subjects involved in the transfer of chattel mortgages,combined with the provisions of the Civil Code,explore the rules that they need to follow and the possible legal consequences they may bear.The fifth part,on the basis of the previous article,proposes that under the current legal framework,the transfer of chattel mortgages can be transferred without consent,but the notification obligation must be fulfilled.In order to be compatible with the current chattel mortgage registration system,it should be distinguished whether it has been registered or not.The registered mortgage can be traced no matter where the "body" of the object is.At the same time,it gives the mortgagee the right of subrogation on the value of the property and the right of revocation as a creditor.If the mortgage is not registered,the rights and interests of the bona fide transferee shall be protected first,and the mortgagee may claim the rights from the debtor.Regardless of whether it is a registered mortgage or an unregistered mortgage,the assignee can eliminate the mortgage on the property by repaying the debt on behalf of it.After my country has established a unified chattel security registration system,the parties will register in a timely manner,and the assignee will perform reasonable duty of care to fully realize the effect of the mortgage.