| Article 404 of the Civil Code extends the scope of application of the normal operation buyer rule to the field of general chattel mortgage.However,due to the ambiguity of the legal provisions and relevant judicial interpretations,the rules lack clear applicable standards and obscure the legislative intent of the rules.First of all,it is necessary to clarify the identification criteria of "normal business activities","reasonable price paid","acquisition of mortgaged property" and the subjective state of the buyer,and deconstruct the elements of the rules from a positive perspective to facilitate judicial application;Secondly,in combination with the provisions of Article 56 of the Supreme People’s Court’s Interpretation on the Application of the Civil Code of the People’s Republic of China on Guarantees,the acts that cannot be identified as "normal business activities" are excluded from the negative perspective,but this interpretation has the suspicion of excessively limiting the scope of application of Article 404 of the Civil Code,which is worth further discussion;Thirdly,the buyer obtains the unencumbered ownership through the normal operation of the buyer’s rules,but in the commercial activities,there may be situations where the mortgagor sells two things and the buyer resells them.Therefore,it is necessary to draw lessons from the experience of comparative law and propose feasible solutions;Finally,based on the value orientation of the legislation itself and the potential risks in practice,the rights and interests of the mortgagee can not be fully protected in the normal operation of the buyer’s rules.Therefore,in addition to the basic relief approach around the mortgage contract,the second paragraph of Article 406 can also be interpreted based on the existing security system framework in the Civil Code,fully exploring the possibility of the application of the system of subrogation in rem,In order to realize the effective relief of mortgage rights. |
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