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Research on the Maximum Mortgage

Author: OuQin
Tutor: YuanWenQuan
School: Chongqing University
Course: Civil and Commercial Law
Keywords: the maximum mortgage legal function the causations of confirmation perfection
CLC: D923
Type: Master's thesis
Year: 2010
Downloads: 121
Quote: 0
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Abstract


The maximum mortgage has been established since the German Civil code, successively be used by Swiss, Japan and Taiwan civil law. Especially Japan civil law which is regarded as an aggregation. As a special mortgage, the maximum mortgage adapted to the request of modern society trade developing due to it simplify the process, improve the efficiency, promote financing activities etc. China also regulates it in Assurance Law, Supreme People’s Court’s Judicial Interpretations of Applying“Assurance Law”, and Real Right Law. But the provisions of a total of only 12 are not detailed and comprehensive. This article analyzes the establishment, confirmation, validity of the maximum mortgage and the inadequate of our existing system, and proposes some suggestions, in order to do good to the social life application of the maximum mortgage system.This article has six parts except preface and concluding remark. The first part discusses the basic theory of the maximum mortgage as the characters and legal function. The second part presents the legal relationship of the maximum mortgage, including the maximum mortgagor and mortgagee, the rights and obligations of the maximum mortgage parties, and the maximum mortgage subject matter. The third to fifth parts are important and difficult ones of this article, involving the establishment, confirmation, validity of the maximum mortgage. I analyze the types of the guaranteed credit, the establishment of contract, the validity of registration, the causations and validity of the confirmation, the range of secured claims, and the transference of the maximum mortgage, all that basis on the reference of the foreign legal system. The last part is on the perfection of the maximum mortgage system in our country. In my opinion, it should limit the types of the guaranteed credit when the maximum mortgage sets up. The contract should include the maximum. Registration of contracts should take the unified registration condition doctrine. The law should give the maximum mortgagor the reduce application institution and extinctive application institution when the maximum mortgage confirms. The secured claims range of the maximum mortgage should include principal, interest, delay interest and penalty. The transference items of maximum mortgage should contain the debtor.

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