An Explanatory Study On The Effect Of Chattel Pledge After Loss Of Possession

China have been developed quickly during past 20 years.The demand for corporate financing and personal lending has increased,and property liquidity also has improved greatly.In order to ensure that the creditor’s rights can be paid off,real rights for security have frequently appeared in the field of theory and practice.The Civil Code has also improved the security system.However,due to the mismatch between the limitations of the law and the diversity of the real society,it is still necessary to explain the effectiveness of loss of possession and chattel pledge.The existence of the chattel pledge is not only related to whether the creditor’s rights of the pledgee can be paid off,but also closely related to the transaction safety of other creditors of the debtor and the third party,and more related to the overall construction of our security system.Both the pledge of movable property and the lien are based on the possession of the obligee.The Civil Code clearly stipulates that the lien is extinguished due to the loss of possession,which belongs to the fourth paragraph of Article 393 of the Civil Code.However,there is no clear provision on the effect of the pledge of movable property lost by the pledgee,and there are also different viewpoints in the theoretical and practical fields.Aiming at the dilemma faced by the pledge of movable property after the loss of possession,through the study of relevant legislation,theoretical perspectives,and practical cases at home and abroad,combined with the basic principles of property rights in the Civil Code and the construction of the security system,this article analyzes the three views and theoretical fulcrums of the theory of elimination,the theory of impairment of effectiveness,and the theory of existence.The focus of controversy from different perspectives is on the element of possession itself,what role does it play in the pledge of movable property,and what is the legal support behind the norm that establishing a pledge of movable property requires the pledgee to possess the pledged movable property? Finding an answer to this question can clarify the legislative intent.Determining the relationship between possession and the establishment of chattel pledge,loss of possession,and extinction of chattel pledge cannot be separated from the real right attribute of chattel pledge,and is excessively limited to the distinction between chattel pledge and mortgage without the need for transfer of possession.Full consideration should be given to the original intention of the establishment of security interests,the realization of the functions of the security system,balancing the safety of third-party transactions,and systematic thinking should be used to explain how loss of possession caused by different reasons affects the effectiveness of chattel pledge.This paper analyzes the difficulties faced by the pledge of movable property that has lost its possession,divides the reasons for the pledgee’s loss of possession into three categories: the pledgee’s own reasons,the reasons of public authority,and the reasons of others,and clarifies the specific circumstances of loss of possession under different reasons The functionalism of the security system proposes that the pledge of movable property lost in possession due to the pledgee’s own reason shall not antagonize a bona fide third party;According to the property subrogation,expectant right attribute and priority effect of the chattel pledge,it is proposed that the chattel pledge lost its possession due to public power.If the possession cannot be restored,the pledgee shall have priority to be repaid with respect to its subrogated property within the scope of the value of the pledged property.If the possession is restored,the effectiveness of the chattel pledge will not be interrupted during the period of loss of possession;According to the principle of retroactive effect,priority of repayment effect and legal principle of real right of chattel pledge,it is proposed that if the chattel pledge lost possession due to other people’s reasons,the chattel pledge will survive unless the possession can be restored,and if the possession can not be restored and there is no subrogation,the chattel pledge will be extinguished when the situation that the possession can not be restored occurs.Type the reasons for the loss of possession,explain the effect of chattel pledge,and provide an explanation path for the effect of pledge after the loss of possession.