Research On The Recovery And Effectiveness Of Chattel Mortgage,from The Perspective Of The Coordinated Application Of Articles 406,403 And 404 Of The Civil Code

The mortgage transfer system before the civil code is constantly changing in legislation,and there are continuous disputes over the interpretation of Article 191 of the property law.Article 406 of the newly issued civil code changes the previous provisions and allows the free transfer of mortgaged property,thus establishing the recovery and effectiveness of mortgage in the system.After the transfer of the mortgaged property,the mortgage still exists on the mortgaged property,and the location of the mortgaged property can still be traced to claim the mortgage.However,due to the existence of the second sentence of article 403 and article 404,the interpretation and application of article 406 is still subject to many constraints.There is no dispute about the application of article 406 of the civil code in the field of real estate mortgage.As for the field of movable property mortgage,the transaction of movable property is very frequent and active.In addition,China’s unified registration system of movable property is not mature,and there are problems in the direct application of article 406 general rules in the field of movable property mortgage.Articles 403 and 404 stipulate two kinds of blocking reasons for the recovery and effectiveness of movable property mortgage,It should take precedence over its application as a general law article.After the transfer of the mortgaged property,the application of articles 403 and 404 of the civil code and the interruption of the recovery and effectiveness of the chattel mortgage are in line with the situation of damaging or possibly damaging the mortgage in article 406.At the same time,article 406 also gives the mortgagee the right to relief.There is also concurrence in application between the second clause of article 403 and article 404.In terms of legal application,the second clause of article 403 and article 404 need to gradually refine and analyze the types of buyers.If the buyer belongs to the buyer of normal business,article 404 focusing on the protection of normal business activities shall be applied preferentially,and there is no need to require the buyer to be in good faith subjectively.Article 406 the effect of restricting the transfer of mortgaged property between the parties shall not be against the third party,otherwise the restrictive agreement between the two parties is easy to make the recovery effect of the constructed chattel mortgage in vain.It shall be the legal obligation of the mortgagor to notify the mortgagee after the transfer of the mortgaged property.When the mortgage of movable property is not registered,article 403 takes precedence over general rule 406.Based on the establishment of the unified chattel and power guarantee registration system,the inquiry of chattel mortgage registration should be the legal obligation of bona fide buyers in commercial transactions.Article 403 also belongs to the extension of article 311 bona fide acquisition system in the field of mortgage.To sum up,this thesis aims to explore the recovery effect of the mortgage right after the transfer of chattel mortgaged property from the perspective of the coordinated application between article 406,the second sentence of article 403 and article 404 of the civil code.