Research On Protection Of Mortgagee In The Application Of The Rule Of “Buyer In Ordinary Course Of Business”

China’s Civil Code extended the rule of "buyer in ordinary course of business" from the field of floating mortgage to the field of general chattel mortgage.This extended application has efficiency value as a whole,and also comes down in one continuous line with the development logic of chattel mortgage system;At the same time,it meets the practical needs of optimizing the business environment in China.Although the extension of the "buyer in ordinary course of business" rule is applicable,It has changed the interest pattern among the mortgagor,the mortgagee and the buyer of the mortgaged property,and actually weakened the mortgagee’s control over the transfer of the mortgaged property.Therefore,it may also lead to the problem of insufficient protection of the interests of the mortgagee.There are three reasons for this problem.First,the"buyer in ordinary course of business" rule blocks the recourse of the mortgagee;Second,the elements of the rule of "buyer in ordinary course of business" should be interpreted in a limited way.Third,China’s law has not stipulated the rule of subrogation in transferential funds.In order to prevent the "buyer in ordinary course of business"rule from being abused and damaging the interests of the mortgagee,the elements of the "buyer in ordinary course of business" rule ought to be interpreted narrowly.First of all,the "ordinary course of business" behavior should be limited.This article puts forward the "Compromise Theory" by comparing the path of judicial interpretation and extraterritorial law;Secondly,the requirement of "Good Faith" should be put forward to the buyer,which is different from "Good Faith" in "Good Faith Acquisition”;Lastly,the application scope of the subrogation rule should be extended to the transferential funds,so as to provide relief for the mortgagee after the buyer successfully opposes the mortgagee.By comparing the ways of claiming the subrogation in transferential funds according to Article 390 and Article 406 of the Civil Code,this article believes that claiming the subrogation rule of transferential funds according to Article 390 can more comprehensively protect the mortgagee who loses the right of recourse due to the rule of "buyer in ordinary course of business".