| The attitude of China’s legislation on the issue of the transfer of collateral has been in a state of repeated change,from "restricted transfer" to "free transfer" to "restricted transfer",and finally the Civil Code of the People’s Republic of China established the "free transfer" rule.The civil code’s legislative model of allowing the free transfer of collateral reflects the legislation’s attempt to balance the interests of the mortgagor,the mortgagee and the transfer of the collateral.However,the provisions of the new rules on the transfer of collateral are not clear,although the free transfer rules break through the shackles of the restrictive transfer system,but at the same time,it hinders the mortgagee to use the exchange value of the collateral under certain conditions,and the cost and risk of the mortgagee’s recovery of the collateral will also increase relatively.Although the legislation takes into account this situation and gives the mortgagor and the mortgagee a special effect of the preferential agreement,the legislation does not make the legal effect of the special agreement clear.In addition,although legislation has always sought a way to balance the rights and interests of the transfer under the free transfer rules,there are still problems such as complicated procedures for registration of the transfer and difficulty in guaranteeing the transfer’s access to benefits.In order to maximize the efficiency of the free transfer of collateral rules,it is necessary to unify the criteria for determining "potential damage to the mortgage right",and give the "special contract for prohibiting disposal" the ability to register to protect the interests of the mortgagee. |
