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The Realization Mechanism of Mortgage Subrogation in Rem

Author: ZhangJian
Tutor: YuMin
School: Southwestern University of Finance and Economics
Course: Law
Keywords: Mortgage Subrogation in Rem Realization Mechanism
CLC: D923
Type: Master's thesis
Year: 2008
Downloads: 110
Quote: 1
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Abstract


Mortgage Subrogation in Rem(Subrogation of Mortgage) refers to what an insurance company pays its insured client for injuries and losses, such as the insurance payment and compensation taking the place of mortgage subject matters which have been injured by fires or other forms of damages. The mortgager has the right to execute the mortgage. The insurance payment, compensation and other things the insurance company pays for the injures and losses are substitutes。Mortgage is set to guarantee the creditor’s benefits. A creditor can be given a right of compensation-receiving priority imposed on the mortgagee’s property, which means the creditor will be compensated in the first place according to the value of the mortgaged property when the right of the creditor has not been discharged. The purpose of setting the rule is to help the creditors avoid risks and guarantee their benefits. However, the mortgaged property itself may have the risk of being damaged or lost, including the risks which cannot be avoided by the mortgagee (third party’s infringement, land taking-over, etc.), and the natural disasters which cannot be avoided by any party.If we apply the rule of real right in which the right is eliminated with the disappearance of specific objects to mortgage, mortgage will not exist with the loss or destruction of mortgaged property. In that case, the guarantee function of mortgage is very limited to the creditor, which goes against the effect value of laws. Therefore, Mortgage Subrogation in Rem (Substitution of Mortgage)—a restoring mechanism for the impaired rights is established in the mortgage law system.Any rule, once set, must be put into implementation. Oriented to the real practice of the rule, the thesis probes into the issue of how to set a both effective and fair realization mechanism of Subrogation in Rem. To achieve the goal, the author firstly expounds the jurisprudence foundation and the nature of Subrogation in Rem at length and then compares the different forms of implementing Subrogation in Rem in various countries. Besides, the author analyzes the current measures of carrying out Property Law to make his idea more clearly.The thesis consists of 5 parts:The first part serves as an introduction based on literature review. A general introduction of the most fundamental contents such as the significance, research methods and thoughts of the thesis is conducted. It begins with the brief introduction of Subrogation in Rem in different countries and then the author finds out the defects in its realization mechanism. So the thesis is significant in solving problems.Chapter 1 gives a bird’s view on the system of Subrogation in Rem, which clarifies the scope of the discussion in the following three chapters. This chapter is composed of 4 parts: the theoretical bases, the law foundation, and the components and the contents. It focuses on the contents of Subrogation in Rem.Chapter 2 is a comparative study of Subrogation in Rem at home and abroad in the hope of perfecting the system in our country. A careful study of comparison is conducted by a detailed explanation of the realization ways designed by the typical countries of Civil Law System—Germany, France, Japan.Chapter 3 occupies the center of the thesis in which the author raises three questions on the realization of Subrogation in Rem: how to control the value of the mortgaged property? how to specify the substitutes to realize mortgage? how to publicize Subrogation in Rem. The solution to the three questions is the important precondition of implementing Subrogation in Rem.Chapter 4 deals with the reflections and suggestions of implementing Subrogation in Rem. Having reflected upon the rule setting of Subrogation in Rem, the author puts forward some constructive suggestions by summarizing the ideas of the previous several chapters.

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CLC: > Political, legal > Legal > Chinese law > China and France
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