The Security Effect of Right in Personam of Specific Property of Real Estate Mortgage Contract——An Atypical Security that Integrates Personal Security and Proprietary Security
Article 46 of The Supreme People's Court's Interpretation of the Security System of theCivil Code seems to adopt the general theory of the liability for breach of contract,but it is actually a combination of the secur-ity liability.The theory of liability for breach of contract focuses on the single effect of mortgage registration,which not only leads to the improper interpretation of expression of intention,but also neglects the absorption of security liability in its theoretical structure.The real estate mortgage contract includes the security agree-ment and the registration agreement,which produce the security liability and the mortgage registration right respectively.The effect of the former is the security function.This brings the efficiency advantage that the theory of liability for breach of contract lacks.The effect of such a security is essentially a security of creditor's rights,but the liability property is limited to specific real property,and the non-typical guarantee theory confuses the basic boundary between personal and proprietary security,therefore,the nature of the"specific property+creditor's rights security"of the atypical security.By reference to article 467 paragraph 1 of the Civil Code,the real estate mortgage contract,as a type fusion contract,may refer respectively to the norms applicable to the guarantee contract and the contract of direct creation of security interests,so as to have the legal effect of right to realization and compensation.
Real Estate Mortgage ContractMortgage RegistrationSecurity FunctionAtypical Secu-rityApplicable by Reference
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