Research on the Effectiveness of Mortgage Rights of Self-Mortgage in Financial Leasing
In the financial leasing transaction,the practice that the lessor authorizes the lessee to mortgage the lease item to himself and register the mortgage is called self-mortgage.Although Article 9 of the judicial interpretation of the old financial leasing does not specify whether the mortgage is established,according to the rules of the change of the real right of the creditor's rights formalism,the mortgage cannot be effectively established because the lessor and the lessee do not have the effect of establishing the mortgage and are contrary to the legal principle of the real right.In terms of interpretation,the normative intention of judicial interpretation is not to establish mortgage but to confirm the resistance effect of mortgage registration.Influenced by the legislation of security functionalism,the civil code transforms the ownership function of the lessor into an atypical security right,and the lessor can claim the priority of compensation for the leased property based on ownership rather than mortgage.
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