Property law on real right of pledge of new breakthroughs and judicial application
than guarantees method, real right method about guarantees real right of provides has many new of breakthrough and development, such as, in "ownership made of special provides" a chapter in the, established has guarantees real right of goodwill made system; guarantees real right General in the first determine has "guarantees real right" of concept, established has on guarantees real right changes and reasons behavior of distinguish principles (following referred to distinguish principles), expanded has property guarantees range, Change has protection and real right coexist Shi guarantees right exercise of rules, extended has guarantees real right of real generation bit real of range; in guarantees real right points is mortgage right in the, created has floating mortgage system, reasonable divided has mortgage registration of mortgage right established elements and against elements, strengthened has on mortgage property transfer of limit, adjustment has mortgage right achieved of has order, canceled has ban repeat arrived mortgage of mandatory provides, increased has mortgage right achieved against other creditors interests of relief measures; in quality right in the, provides has most high quality right, Clear a share and set the quality of the accounts receivable of the Fund; in lien, expanded the scope of lien secured, broadened the scope of property among enterprises, defined the priority mortgage right and pledge right of lien priority, and so on. These new provides for China guarantees real right system of judicial applies has major of significance, but we should see, these new provides in the some due to legislation of enough clear, and specific, easy caused understanding and applies Shang of deviation, for, author for limited to length, cannot one by one discusses, only on guarantees real right system in the most basic of on distinguish principles and most easy confusion of about guarantees real right of goodwill made system do a superficial of discusses, looked can in understanding and judicial applies Shang to up mastery of effect.
first, the principle of distinction
called the principle of distinction, cause refers to the change of real right of property with the fulfilling by the Act distinguish of the resulting change in behavior, it is a breakthrough of the real right Act new regulations. Section 15th of the property law "entered into by the parties relating to the establishment, modification, transfer and elimination of real property contracts, unless otherwise provided by law or otherwise specified in the contract, since the contract implemented; not to handle the registration, does not affect the contract. "Provision, is the concrete embodiment of the principle of distinction. While the article 187th, 188th, 189th, No. 212, No. 224 No. 226 in the first paragraph of Article No. 227, article No. 228 and article specific to different mode of effectiveness of a security right. The effectiveness of the security right for mode, elements of real right law of our country to take publicity and publicity against the elements and way of production elements mainly to public, for publicity against the elements, supplemented by the legislation. On the issue of mortgage of real estate recovery for registration to take effect; the mining counter requirement to registration of movable property. In quality right problem Shang mining publicity entered into force elements doctrine, regardless of is movable pledge, also is right pledge, take of are is publicity elements doctrine, just movable pledge take of publicity way is delivered, and right pledge take has two species situation: has right voucher of mining delivered right voucher, as publicity of way; no right voucher of mining registration of way, as stock, and shares pledge, take of is registration as publicity method. Property law which will guarantee the effectiveness of the contract and collateral effects distinguish mode, change the creditor law effective disorder situation of confused with the real rights for security force, best reflects the fair and reasonable value for the effective and full protection of the rights of security interests, has great application value.
(a) real estate guaranty contract and its security right on judicial application of the principle of distinction
of the property law of the 187th "to the first paragraph of this article 180th first to the third item of property or mortgage of a building under construction in under the fifth, should go through the registration of mortgage. Mortgages since the inception of registration ". Specifies the establishment of real estate property, mortgage of real property to set up a registration requirement, not registered mortgage right effect, but does not affect the validity of the mortgage contract. At this point, as long as the mortgage contract legally valid, even if the mortgage is not a registered but never entered into force, the mortgagee without mortgage, the mortgagee under the mortgage contract agreement in force, through litigation, to the mortgagor advocated the continued performance of the contract, forcing mortgage registration, with a view to realizing the mortgage interest, to the mortgagor or claims for breach of contract. This changed the creditor law entered into force confused with the right force, creditors face the guarantee contract due to unregistered real estate is difficult to remedy the embarrassing situation. The juristic act of real right change and its reason of the establishment of the principle of distinction, more effective and adequately protect the interests of the real rights for security, more fully reflect the principle of fair and reasonable civil, judicial application is significant, it, real estate people particularly on the protection of the right to security.
(b) movable property security contract security right and judicial application of the principle of distinction
1, on the mortgage. Property law section 188th "180th fourth and sixth in the first paragraph of this law provided for property or the fifth provision of mortgage of ships, aircraft being built, mortgage mortgage contract establishing without registration cannot be used against a bona fide third party. "And the 189th article" enterprises, individual businesses, agricultural producers and business operators in this law article 181th chattel mortgage shall be submitted to the Administrative Department for industry and commerce registration of domicile of the mortgagor. Mortgage mortgage contract establishing without registration cannot be used against a bona fide third party. "Rules, respectively, are the two special types of movable property (real and floating movable property) the creation production publicity of mortgage against the elements, divide the mortgage register established and against elements of mortgage, chattel mortgages from mortgage contract date of entry into force which produce the effect of the mortgaged right, unregistered, not against a bona fide third party. According to distinguish principles, on this provides of on movable mortgage contract of effectiveness and mortgage right of effectiveness relationship, contains two layer meaning, one, and mortgage right of effectiveness are and mortgage contract of effectiveness phase separation, mortgage right of entered into force is to mortgage contract of entered into force for premise, that as long as movable mortgage contract is effective of, mortgage right since mortgage contract entered into force Shi that established, and regardless of mortgage whether registration, just, has registration of, to against goodwill third people; without registration of, its mortgage right of effectiveness to by must of limit, Also be subject to the "third party" against restrictions; second, invalid chattel mortgage contracts, chattel mortgage contract is invalid and cannot be set up, of course, there is no issues of mortgage and registration. Visible right from the registration of chattel mortgage or mortgage contract is founded by model and real estate security established in real right registration no pattern is different. Which, if mortgage contract agreed should handle registration of, mortgage right people can this agreed through litigation to mortgage people advocates continues to perform, forced requirements mortgage people handle mortgage registration, excluded third people of against, to maximum to reduced himself of claims risk; if mortgage contract not agreed should handle registration of, mortgage right people except cannot against goodwill third people outside, still to established entered into force of mortgage right advocates achieved himself of mortgage interests, or specific advocates default responsibility. Compared to immovable real right for security, the principle of distinction to the chattel mortgagee protection space for relative freedom of choice.
2, on the pledge. Property law enacted prior to the implementation of article 64th of the guarantee law "the pledgor and the pledgee shall conclude a pledge contract in writing. -Property transferred in pledge the pledge contract shall people sometimes take effect. "The provisions on the right of pledge contract with mass effect is confused, and the real right Act was amended, article No. 212 of the Act" the pledge since the inception of the pledgor at the delivery of the pledged property. "The provisions of, delivery of the pledged property as pledge for establishment, does not deliver, right is not established, but not delivery does not affect the pledge contract. Thus, after the signing of the pledge contract, pledgor default delivery property, the pledgee may claim is through the continued performance of the contract, forcing the pledge delivered by quality, to achieve its pledge of rights or hold the liability for breach of the pledgor. Can be seen, the principle of distinction of the pledgee protection applicable in the real right law to break new ground, but for the right of way?? Delivery of the pledged property needs attention is in the judicial application, and articles of the property law of the 25th "establishment and the right to personal property before assignment, the right holder has possession of the chattel, property rights take effect upon the entry into force of the legal acts. "And 26th" prior to set up and transfer of movable property, the third person to possess the property, can transfer requests is liable to deliver third party to return the right instead of the original delivery. "And the 27th article" when the transfer of movable property, the two sides also agreed upon by the transferor to continue in possession of the chattel, which come into effect from the time the Convention entered into force. "Provision, namely facility delivery instructions delivery and keeping appropriation three ideas to deliver the special legal provisions, will pledge to deliver the three way?
first of all, under the simple delivery, because the pledge prior to the establishment of pledged property has the pledgee possession, the quality of its people without real delivery, as long as the pledgor and the pledgee pledge reached by the parties when the agreement was established, and pledge to establish. Therefore, such delivery apply to pledge is not difficult to understand.
second, in indicates delivered Xia, due to out quality people not directly occupies pledge property, pledge property still in has returned to out quality people obligations of third people at occupies, and out quality people enjoys of is on the third people of returned requests right, if only is out quality people and quality right people on for third people of returned requests right of transfer reached accord, both cannot completely reached publicity quality right of established purpose, also cannot prevent third people still has disposition pledge property of May. Therefore, in my opinion, to indicate that the right delivery method for establishing the pledge, reference should be made to guarantee law interpretation of article 88th "pledgor with indirect possession of the pledge of property, pledge contracts shall by notice in writing served on the transfer of possession when considered. After receipt of the pledge, will accept the pledgor instructions dispose of the pledged property, the Act is invalid. "Rules applicable, in addition to the pledgor and the pledgee indicating delivery to reach an agreement, and shall notify the third person (the person in possession of the pledged property), since notice when it reaches the pledge deemed delivery, pledges to set up. Such, according to distinguish principles of protection applies rules, if out quality people and quality right people signed pledge contract Hou, out quality people not perform notification of, at quality right is not set, but pledge contract has entered into force, quality right people according to this entered into force pledge contract through litigation, forced requirements out quality people continues to perform notification or delivered pledge property, to up set quality right, to achieved quality right interests, or held out quality people of default responsibility.
Finally, the set has changed, in my opinion, no pledge by keeping appropriation. First of all, the 27th article excludes property law means divided by the selling establishment of property other than property of the way and keeping appropriation is only for sale (transfer) this way the establishment of property rights, and does not apply to the establishment of other real rights. Because, real right method 25th article and 26th article on simple delivered and indicates delivered provides established real right of way are expressed for "movable real right established and transfer Qian", and on occupies having provides real right of established way expressed for "movable real right transfer Shi", only retained has "movable real right of transfer", is less has "movable real right of established", this is is legislation of omissions did? In my opinion, is not. Instead, the legislation explicitly have to book sale only (negotiable) established rights, such delivery shall not apply for the establishment of other real rights, of course, exclude the application of the right to pledge collateral ways such as. In this regard, the interpretation of the guarantee law 87th article "the pledge on behalf of the pledgee possession of the pledged property, a pledge contract does not force return the pledge, the pledgee upon the pledgor for its right against a third party, people's courts will not support it. "Provision, although this article confuses the pledge contract the validity and effectiveness of the pledge, but has also ruled out the pledge by keeping appropriation. Therefore, if required or recognized the right to possession reformulation method for establishing the pledge, and the real right Act No. 212 "pledge since the inception of the pledgor at the delivery of the pledged property. "Creates the patterns contrary to pledges, nor with the lien of chattel pledge function and harmful to the security of transactions, not conducive to the protection of the pledgee, are unfair. But needed note of is, practice in the, if party to occupies having way agreed quality right, quality right people for not return accountability Yu quality right people of causes and lost confrontation real of occupies (including out quality people not by pledge contract of agreed transfer pledge property to quality right people), according to distinguish principles of protection applies rules, at movable quality right is not set, but pledge contract is effective of, quality right people can according to contract method and guarantees method explained 87th article second paragraph "for not return accountability Yu quality right people of causes and lost confrontation real of occupies, The pledgee to the improper possession may request to stop abuse, rehabilitation, return the pledged property. "The provisions of and accountability for breach of the pledgor.