Research On Mortgage Property Transfer System ——Take Article 406 Of The Civil Code As The Entry Point

The system of transfer of mortgaged property in China has undergone several changes,and the law has different attitudes on whether the transfer of mortgaged property should be restricted or not,which leads to the lack of unified and clear norms of transfer of mortgaged property in the period of The Property Law.Different from China,other major continental law countries basically adopt the model of free transfer of mortgaged property,but the system to protect the mortgagee is inconsistent.However,article 406 of the Civil Code adopts the mode of mortgaged property transfer,which is mainly based on the recovery effect of mortgage and supplemented by the subrogation effect of gold and property.It changed the previous attitude of restricting the transfer of mortgaged property,and explicitly allowed the free transfer of mortgaged property,in line with the basic principle of making the best use of everything.The theory of burden of rights can provide institutional support for the free transfer of mortgaged property.The establishment of unified mortgage registration system of movable and immovable property in China provides institutional support for the free transfer of mortgaged property.After equalizing the interests of the mortgagor,mortgagee,and assignee,it can also be concluded that the promised mortgaged property can be freely transferred."Civil code" the 406 th build free transfer of the mortgaged property system allows the mortgagor and the mortgagee shall transfer of the mortgaged property shall be separately agreed,in the article 43 accepted the guarantee system of the contract can be registered,due to the registration of the transfer ban type essence hinder the transfer of the mortgaged property agreement,shall be negative transfer ban the effectiveness of the contract.The mortgagor shall timely notify the mortgagee when transferring the mortgaged property.Failure to notify the mortgagee does not affect the effectiveness of the transfer contract.The purpose of the notice is to make the mortgagee aware of the circulation of the mortgaged property and judge whether the mortgage right is damaged.When the transfer of mortgaged property damages the mortgage,the transfer price has subrogation effect and the mortgagee has the right to choose the mode of realization of mortgage.Mortgage can chase and effectiveness is largely to protect the interests of the mortgagee,but chase and effectiveness is not everything.There’s mastercard＆visa publication because of chattel mortgage registration confrontation system,unregistered mortgage cannot to bona fide buyer play a role of the public,the mortgage of chase and effectiveness since cannot counter bona fide buyer,consumer’s right to exist as a commodity house mortgage should take precedence over protection,In order to maintain the transaction security of normal business activities,the chattel buyer of normal business activities is also given the priority to fight against the mortgage.Based on the above,when the mortgagee cannot exercise the recovery effect,the mortgagee can choose to exercise the property subrogation of the transfer price to realize the mortgage.The assignee may exercise the right of subrogation to discharge the mortgage.