"Civil Code" Mortgage Transfer Rules Research

China's mortgage transfer rules have undergone many legislative changes,although each adjustment is to adapt to the development of society and the needs of the public,but it has been repeated,and in practice there are different legislative rules and judgment standards of the judicial dilemma.Article 406 of the Civil Code modifies the rules on the prohibition of the transfer of mortgaged property in Article 191 of the Original Property Law,allowing free transfer and recognizing the recovery effect of mortgage right,but does not clearly distinguish between movable property and immovable property,which is not conducive to the comprehensive protection of mortgage right.Although article 406 of the Civil Code stipulates that the mortgaged property can be freely transferred without affecting the mortgage right,the mortgagor can be required to pay off or deposit the mortgaged property in advance if the transfer leads to the loss of the value of the mortgaged property.However,in the judicial practice of the transfer of chattel mortgage,it is necessary to make a specific judgment based on the article 403 and 404 of the Civil Code.The application of the recovery effect of mortgage needs to be interpreted in combination with the mortgage registration rules and the buyer rules of normal business activities,which protects the ownership of the buyer,but at the same time leads to the blocking of the recovery effect of the mortgagee,unable or difficult to exercise the mortgage.Therefore,first of all,it is necessary to clearly distinguish the validity of the transfer of immovable property and chattel mortgage;Secondly,the buyer also has interest demands in the mortgaged property transfer relationship.To perfect the protection of the buyer's rights,we can establish the system of purging the right and clarify the liability of the mortgagor to the buyer for damages.Finally,to perfect the protection of the right of the mortgagee,we can guarantee the interests of the mortgagee by establishing the relief measures of the mortgagee and strengthening the notice obligation of the mortgagee.In order to promote the free circulation of mortgaged property,realize the full use of things,but also to protect the balance of interests of the three parties,guarantee the effective operation of the mortgage system.