On The Rules Of Mortgage Transfer In China

Article 406 of the newly issued civil code modifies the previous legislative rules restricting the transfer of collateral,allows the mortgagor to transfer the collateral freely,and protects the interests of the mortgagee by affirming the mortgagee’s right of recourse to the mortgaged property.Although the rule has been unanimously recognized by the academic circles,there are still problems in the content of the provision and its connection with other systems.Based on this,this paper takes article 406 of the civil code as the research center,draws lessons from the useful experience at home and abroad,and discusses the interpretation and application of the new regulations on the transfer of collateral.In order to better understand the current mortgage transfer system,this paper first defines the relevant concepts in the mortgage transfer system.At the same time,it introduces the legislative model of mortgage transfer in different periods,and briefly evaluates the rules of mortgage transfer in different periods.Secondly,it investigates the relevant systems of the same civil law countries under the establishment of the free transfer mode of collateral,in order to draw useful experience.At the same time,it analyzes the basic framework of China’s mortgaged property transfer rules,affirms the role of the current rules in promoting property circulation,reducing transaction costs and protecting transaction security,and also puts forward some problems that should be clarified when applying the rules.China’s law uniquely endows the parties with the right of special agreement,but the legal effect of the agreement needs to be clarified;The mortgagor’s notification obligation is stipulated,but the content of the notification and the legal liability for failure to notify are not stipulated;Article 406 completely stipulates the rights and obligations of the mortgagee and the mortgagor,but the protection of the rights and interests of the buyer is not reflected in this article,so it still needs systematic interpretation.Thirdly,it further analyzes the 406 mortgage property transfer rules,explains the contents that need to be clear,and makes theoretical demonstration.The author believes that this rule applies to both chattel mortgage and real estate mortgage.In addition,the restrictive agreement between the mortgagee and the mortgagor on the mortgaged property only has the effect of debt law between the parties and does not affect the change of the real right of the mortgaged property.If the mortgagor violates the restrictive agreement,the mortgagee may require it to bear adverse legal consequences.The content of the mortgagor’s statutory notification obligation shall include informing the mortgagee to whom and where the mortgaged property is transferred.If the mortgagor fails to perform the obligation of disclosure and causes damage to the mortgage,the mortgagor shall be liable for breach of contract.Finally,the exercise of the right of subrogation on the price property is based on the premise of damaging the mortgage right."Possible damage to the mortgage right" at least includes the increase of the realization cost or risk of the mortgage right,the interruption of the recovery effect of the mortgage right,the impairment of the value of the mortgage,and the amount of the transfer price does not belong to the semantic scope of "possible damage to the mortgage right".Finally,based on the fact that article 406 of the civil code does not directly stipulate the relevant rights of the buyer,the author connects the relevant legal systems from the perspective of system interpretation to protect the interests of the buyer.Articles 403 and 404 of the civil code stipulate the registration confrontation rule and the buyer’s rule of normal business activities respectively.The buyer can block the mortgagee’s right of recourse to the subject matter in accordance with the above two rules and the priority protection rule for real estate consumers,so as to obtain the subject matter that he has no right to bear.In addition,in order to avoid the recovery of the mortgage,the buyer can invoke Article 534 of the civil code to exercise the right of payment on behalf of the third party and eliminate the burden of rights on the subject matter.When the subject matter assigned by the buyer is exercised by the mortgagee’s right of recourse,it can also claim the warranty liability for right defects stipulated in article 612 of the civil code from the seller and request the mortgagor to compensate for the losses.