Study On The Priority Effect Of Mortgage Of Price Creditor’s Right

The newly established mortgage system of price creditor’s rights in article 416 of the civil code is the crystallization of the concept of functional guarantee,including the seller’s price creditor’s rights mortgage and the lender’s price creditor’s rights mortgage.Its attached super priority effect against the prior secured party has a considerable degree of legitimacy because it realizes the balance of interests among the price provider,the debtor and the prior secured party,especially for the prior floating mortgagee,it does not cause substantive damage to it,and may also benefit from the increase of the debtor’s liable property.However,this super antagonistic effect goes beyond the application scope of the general guarantee ranking rule and is bound to have an impact on the inherent guarantee system.Therefore,it is necessary to further explain the application boundary of its effect from the dual dimensions of production conditions and application scope.As for the conditions of its priority effect,as far as the scope of movable property is concerned,in order to promote movable property financing,non restrictionism should be adopted to include all tangible movable property not prohibited from mortgage.On the issue of the scope of price creditor’s rights,it should be limited to the expenses incurred in obtaining the collateral.As for the proof of the corresponding relationship between the purchase of movable property and the price creditor’s right,the price creditor can prove the existence of the mortgage contract through the mortgage agreement or factual behavior.In the mortgage of creditor’s rights with lender’s price,it is the key to identify this correspondence to prove that the debtor’s loan is actually used to purchase the mortgaged property.On the necessity of establishing diversified registration rules,there is no need to distinguish between consumer goods and non consumer goods or inventory and non inventory for movable property,and configure differentiated registration rules,but we can learn from foreign experience to increase the obligation of notifying the prior secured party for the price creditor.The grace period starts from delivery,which refers to the transfer of possession in the sense of ownership change in the interpretive theory,and the constitutive element of delivery adopts the appearance right theory,which is more conducive to the protection of transaction security.For the scope of application of its priority effect,when it competes with other security interests,the fixed chattel mortgage should be excluded and limited to the field of floating mortgage.When it competes with itself,whether it belongs to the same kind of competition or different kinds of competition,it should apply the ranking rules of general chattel mortgage.Since the provision of price becomes the reason for purchasing construction materials,the former shall prevail when competing with the priority of construction project price.In the case of competing with retention of title,if the creditor has the same nature,there will be no ranking problem between them;If the creditors are not identical,the general ranking rules of competing mortgage can be applied by analogy.When it competes with the transferred security right,the rules on the order of competing with the fixed mortgage can be applied by analogy.For the connection between it and relevant systems,its priority effect can not resist the normal operation buyer,but can restrict the lessee’s lease right.