The Study On The Transfer Rules Of Mortgaged Property

Article 406 of the Civil Code establishes the rules for free transfer of mortgaged properties.From the perspective of the legislative spirit,the rules attempt to change the original mode of restricted transfer of mortgaged properties,adopt the free transfer mode,and recognize the retroactive effect of mortgage rights,while giving the parties Meaning autonomous space.The free transfer mode completes the conversion of the mortgagor through the recovery effect of the mortgage right,and its essence is the change of the parties in the mortgage legal relationship.Therefore,the free transfer model takes the mortgaged property as the center of the system design,aiming to achieve the balance of interests on the mortgaged property,and the change of the parties’ status depends on the mortgaged property.The free transfer mode,through the retroactive effect of the mortgage right,continues the right status on the mortgaged property,and indirectly changes the mortgage legal relationship of the parties.However,the regulations are not clear,and the supporting system is not perfect,and the actual effect is still inconclusive.Therefore,it is necessary to conduct interpretive research on it and explore the rules of mortgaged property transfer applicable to the current practice of civil and commercial transactions in China.Chapter 1,the introduction,analyzes the domestic and foreign legislation on the transfer of mortgaged property,and sorts out the current judicial practice and theoretical views in our country on this issue.The main problem currently faced by the mortgage property transfer rules is that the content of the legal provisions is vague,and there is a situation where one legal provision can be interpreted in multiple ways.It is embodied in: firstly,it is unclear whether the mortgaged property can be freely transferred;secondly,in Article 406,the legal effect of "where the parties have agreed otherwise,shall be in accordance with the agreement" is unclear.;thirdly,the legal effect after the transfer of the mortgaged property is unclear.These issues involve not only the existence of substantive rights,but also the coordinated application of relevant procedural provisions.Solving these problems is the key point that needs to be solved in the interpretation and application of Article 406,and it is also the key to resolving disputes related to the transfer of mortgaged property in practice.Chapter 2 discusses whether the mortgaged property can be freely transferred.Starting from the value function of the free transfer model,this paper expounds the scope of application of the free transfer model,clarifying whether the free transfer model is applicable to both real estate mortgage and chattel mortgage,and discusses whether the mortgagor notifies the mortgagee in time.The free transfer model adapts to the needs of my country’s rapid economic development,and effectively balances the interests of all parties while making the best use of the advantages.Article 406 Mortgage property transfer rules do not distinguish between chattel mortgage and immovable property mortgage,so chattel mortgage also applies to the free transfer model.The mortgagor’s timely notification to the mortgagee shall be interpreted as the collateral obligation of the mortgagor,but the performance of the notification obligation does not affect the validity of the transfer of the mortgaged property.Chapter 3 resolves the unclear legal effect of the parties agree otherwise in Article 406.It can be seen from the standardized layout of Article 406 that the free transfer of mortgaged property is the general rule,and the content of the parties agree otherwise is the exception rule.Starting from the object of the Forbidden or Restricted Transfer Agreement,the study is carried out on two levels of its legal effects on the parties and the third party.The first level discusses the effect of the Forbidden or Restricted Transfer Agreement and its effect on mortgages.The scope of restrictions on the free transfer of property,and it is concluded that the Forbidden or Restricted Transfer Agreement is all valid and has intentional restrictions on the free transfer of mortgaged property;the second aspect discusses the effect of Forbidden or Restricted Transfer Agreement on the transfer of mortgaged property.Influence and effect on the property rights of third parties,the following conclusions are drawn: the mortgagor’s violation of the Forbidden or Restricted Transfer Agreement does not affect the validity of the mortgage property transfer contract,and the Special Contract for Prohibited Transfer and the unregistered Special Contract for Limited Transfer.It does not have the real right effect against the third party,and the registered Special Contract for Limited Transfer can oppose the third party,even if the mortgaged property has been delivered or registered,it will not have the real right effect.Chapter 4 clarifies the legal effect of free transfer of mortgaged property.Under the free transfer mode of the mortgaged property and the effective rules for the recovery of the mortgaged property,the circulation of the mortgaged property can be carried out conveniently,and the mortgagor can freely transfer the ownership of the mortgaged property to others,but the mortgaged right still exists on the mortgaged property.When the mortgage period expires or the conditions are fulfilled,the mortgaged property can be retrieved to realize the mortgage right.Although the mortgaged property has been transferred,the encumbrance on the property has not been eliminated.In order to prevent the mortgagee from exercising the mortgage and endangering his own interests,the transferee can eliminate the mortgage for the purpose of repaying the debt.And the Registration of Confrontation Rules and other reasons,the recovery effect of the mortgage right is blocked,and the interests of the assignee can be preserved at this time.If the mortgage right is damaged during the transfer process,the mortgagee may require the mortgagor to pay off in advance or deposit the transfer price.In this way,the interests of the mortgagee,the mortgagor and the assignee are balanced under the basic market transaction rules that guarantee the smooth flow of goods.