Judicial Application Of Maximum Mortgage Based On Effective Judgment

In commercial transactions,there will be continuous debtor-creditor relationship due to the long-term cooperative relationship between the two sides of the transaction.General mortgage system can’t improve the efficiency of mortgage set by transaction subjects.But the maximum mortgage system can adapt to the demands of continuous and large-scale financing.The maximum amount mortgage system can perfectly solve the problem that the parties need to sign mortgage contracts for many times for mortgage registration.Compared with ordinary mortgage,it is more convenient and quick because of its powerful function of promoting financing and strengthening trading relations.Maximum mortgage system is widely used in trading.Extract the characteristics of maximum amount mortgage disputes in practice and summarize three disputes from the sample case.That is,there are two theories about the determination of the maximum amount of debt: the theory of the maximum limit of principal and the theory of the maximum limit of debt.There are two theories about the determination time of the maximum creditor’s right after the mortgage is sealed up and seized.There are two arguments about the alteration and registration of maximum mortgage,that is,there is no need to register or need to register.This paper analyzes the legislative status,judicial practice and academic viewpoints.If the maximum amount of debt refers to the maximum amount of principal,it will damage the interests of the mortgagee of the maximum amount,and it will also violate the legislative intention of the maximum amount of mortgage system.Therefore,the maximum amount of claims shall be the maximum limit of claims.In the case of the mortgaged property being sealed up and seized,the determination of the maximum mortgaged principal creditor’s right at the time of seizure stipulated in Article 206 of the Property Law does not conflict with the determination of the maximum mortgaged principal creditor’s right at the time when the mortgagee knows the fact that the mortgaged property is seized and seized stipulated in Article 27 of the provisions of seizure and freezing.Article 27 of the provisions on seizure and freezing is the specific embodiment of Article 206 of the Property Law,combined with each other,the two determine why and when the maximum amount of the principal creditor’s right can be confirmed when the mortgaged property is seized.Therefore,when the mortgaged property is sealed up and distrained,the maximum amount of the mortgaged principal creditor’s right is determined when the mortgagee knows the fact of sealed up and distrained.Based on the effective principle of public notice of real right change and the protection of interests of subsequent mortgagee and common creditors,change registration is required while changing the scope of creditor’s right of maximum amount mortgage and ceiling of debt and period of settlement.