Research On The Competing Existence Of Floating Mortgage Rights And Other Rights In My Country

As a kind of real right of security,floating mortgage seeks to directly control the exchange value of collateral and plays the role of creditor's right realization.However,the floating mortgage system in China's current law only "property law" article 181,189 and 196 three special law.In recent years,there have been more and more disputes involving floating mortgage,and the imperfect laws and regulations have caused some troubles to the courts at all levels in trying floating mortgage disputes,and even resulted in different judgments of the same case.Under the background of the compilation of civil code at the present stage,the author expects to sort out the relevant floating mortgage system in the civil code(draft),so as to correctly understand and apply the relevant provisions.The first chapter of this paper starts with the theoretical basis of floating mortgage and the status quo of legislation,and firstly expounds the reasons and characteristics of "British floating mortgage" and "American floating mortgage" in the current disputes.Secondly,in the context of the compilation of China's civil code,the author briefly analyzes the provisions and changes of floating mortgage system in China's law and the draft.The second section starts from the current situation of judicial judgment and analyzes the controversial points of floating mortgage in judicial practice by combing the relevant judicial documents.Compared with the general chattel mortgage,the essence of floating mortgage system is that the mortgagor is free to dispose of the mortgaged property in the normal course of daily operation without the consent of the mortgagee.Due to its particularity,the legal system should have detailed rules to play the function and role of floating mortgage in the financing process of small and medium-sized enterprises.However,due to the current effective legislation of our country to its provisions are lax and crude,in the floating mortgage right and real right of security in the competition with the judge provisions are different.During the duration of the second chapter mainly from the floating mortgage floating mortgage on a floating on the validity of the mortgaged property "outflow",this article first "uniform commercial code" refers to the United States and the relevant provisions of the law in our country,the buyer is not subject to normal business activities and principle is analyzed and expounded,analyzes in detail its four constitutive requirements;After that,the author analyzes the logical rationality of extending the scope of application of the principle of not being pursued by the buyer to the field of general chattel mortgage in the draft.Firstly,the author discusses the feasibility and rationality of extending the principle to general chattel mortgage from the viewpoint of scholars' objection.The third chapter mainly analyzes and solves the core problem of the real right of security,that is,the priority order of compensation when the real right of security is competitive.There is a dispute about whether the floating mortgage in China should be a British floating mortgage or an American floating mortgage in theory.The first section mainly introduces the main characteristics of British floating mortgage,and analyzes the priority sequence of floating mortgage right and other security property right in the case of this case in combination with the property law of our country.Accordingly,in the second quarter to floating mortgage cuts,analysis the functional perspective of real rights for security legislation race as a priority,and to analysis to the principle of "draft" established by public order to establish the priority sequence compensation against mortgage under the doctrine of "the third person in good faith" should be how to coordinate and hypothec specific implementation of the program.The fourth chapter mainly solves the problem of the order of repayment when the mortgage right and other rights are competing on the "incoming property" of floating mortgage during the existence of floating mortgage.Because our country in "draft" absorption based on the experience of the American "uniform commercial code" and logic,introduces the method of the "super priority" purchase price of gold on the real rights for security,therefore,the first section in this chapter to introduce the method on real rights for security for the introduction of the purchase price of gold,and then analysis the system and guarantee system of our country existing problem.Due to the purchase price of gold guarantee real right and the ownership of the civil law countries retain similarities on system function,and the "draft" in the title retention system perfect,so the second section of this chapter,first of all,from the title retention system in our country,this paper expounds the improvement of the system of title retention,the establishment of the public system "have not been registered,shall not be against a third person in good faith",introducing the purchase price of gold in China is analyzed on the legitimacy and rationality of security right.