Research On The Confrontational Effect Of The Transfer Registration Of Real Estate Mortgage Right In The Transfer Of The Main Creditor's Right

When the creditor's right is transferred,the real estate mortgage guaranteeing the creditor's right shall be transferred to the assignee of the claim in accordance with Article 407 of the Civil Code of the People' s Republic of China.The transfer of real estate mortgage involves the publicity rules of the change of real estate property right,whether it can be transferred to the assignee without the transfer registration has become the focus of controversy in the theoretical and practical circles.For this reason,Article 62 of the Notice of the Supreme People's Court on printing and distributing the minutes of the National Conference on Civil and commercial trials and Article 547 of the Civil Code are amended on Article 81 of the Contract Law,denying the academic view that the transfer registration can be effective.However,it does not provide for the effectiveness and scope of real estate mortgage transfer registrationThis paper claims that the transfer of real estate mortgage registration has the antagonistic effect.Firstly,with the study of less effectiveness and specific scope,this paper starts from the contradiction in the case of practice,the existing theoretical theory and the legislative meaning of the amendment of the Civil Code.Secondly,they put forward their own opinions on the specific standard of "goodwill","third person",the scope of "proviso" of Article 209 of the Civil Code and the specific type of "registration" of the Civil Code,and argue that the transfer of the real estate mortgage is "registration confrontation" rather than "registration effect".Finally,combining the relevant legislative purpose,theory and judgment decree,the types of third person to demonstrate the real estate transfer registration include: 1,Third party of creditor's rights: the seizure,participation in the distribution creditors,bankrupt ordinary creditors,compulsory execution creditors,personal injury creditors;2,The third party of real right: the right holder of the land management right through bidding,auction and public consultation,the mortgagee of the land management right and the transfer registration and the buyer of the collateral in the serial transaction.