The Reform of the Rules for the Assignment of Mortgages:Based on the Coherent Thinking of the PRC Civil Code and the Judicial Interpretation of the Security System
The PRC Civil Code stipulated the rule of free assignment of mortgages,which was modified from the rule of restrictive assignment of mortgages stipulated in the period of the PRC Real Right Law,and introduced the"mortgage may be damaged"rule and the"parties'agreement pre-vails"rule.These rules were legislated with a focus on the effective realization of mortgage rights for financial institutions and the special protection of socially disadvantaged groups.They possess a de-gree of rationality and have indeed facilitated a balance between the circulation of mortgaged property and the protection of the interests of mortgagees in practice.However,the existing rules remain am-biguous,particularly in the realms of the right of habitation and the mortgage of movables.It is nec-essary to make interpretative analysis based on the coherent thinking of the PRC Civil Code and the Judicial Interpretation of the Security System,which involves further clarification of the legitimacy,the boundaries,the relationship with the right of habitation and the applicability to movables of the assignment with a mortgage,to promote the scientific and rational development of the rules governing the assignment of mortgaged property within the civil law and to accommodate the balanced develop-ment of diverse social groups.
assignment of mortgagesthe"mortgage may be damaged"rulethe"parties'a-greement prevails"ruleright of habitation
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