Balanced Application Of Purchase Money Security Interest And Floating Charge

Incorporating the Purchase Money Security Interest into the civil code,contains legislators’ good expectations for optimizing the business environment and expanding enterprise financing.However,as a legal transplant,the Purchase Money Security Interest will inevitably collide with the current security interest,especially the prior floating mortgage.In the case where the Purchase Money Security Interest and the floating mortgage coexist,the floating mortgage is inferior to the Purchase Money Security Interest,which will not only increase the difficulty of realizing the floating mortgage,but also make it difficult for the floating mortgagee to obtain a higher return on refinancing.But the economic value of promoting the low-cost financing of small and medium-sized enterprises,the fair value of promoting the rational distribution of rights and obligations,and the system value of improving China’s modern movable property guarantee system make the Purchase Money Security Interest have sufficient legitimacy and rationality.The constitutive elements of the Purchase Money Security Interest and the floating mortgage,such as the subject,the object,the secured creditor’s rights,and the registration,have certain commonality and individuality.The degree of perfection of the elements and the expiration time of debts affect the nature of the rights and the priority rules.In order to avoid losing priority,the floating mortgagee will prohibit the debtor from establishing a later Purchase Money Security Interest.The validity of this clause follows the principle of contract relativity,but it can be used against malicious third parties.In order to avoid the expansion of losses,the floating mortgagee can require the debtor to perform the notification obligation when establishing the purchase money security interest.The notice does not block the establishment of the Purchase Money Security Interest,but can play a role in drawing the attention of the floating mortgagee.In order to ensure the super-priority effect,the price super priority holders should emphasize the fixation of evidence in the process of secured transactions,including proving the existence of agreement between the two parties and the one-to-one correspondence between money and property.