Whether the transfer of real property mortgage rights with the main claim needs to be regis-tered has been a long-standing debate in both theoretical and practical circles,and the mainstream view has adopted the view that registration is unnecessary.The new paragraph 2 of Article 547 of the Civil Code of the People's Republic of China affirms that the transfer of real property mortgage rights with the main claim does not take registration as the effective requirement,that is to say,it adopts the mode of arbitrary regis-tration and implements the principle of subordination.On the one hand,the system of arbitrary registration reduces the transaction cost and improves the efficiency for the transfer of claims,especially the disposal of non-performing loans,on the other hand,the inaccurate publicity of property rights and the separation of the state of properly rights in form and in fact lay down hidden dangers for the entity and procedure,which need to be sorted out and studied.While establishing arbitrary registration,one still needs to be cautious of the legal risks in the transfer of real property mortgage rights with the main claim.In terms of substantive law,it is necessary to improve paragraph 2 of Article 547 of the Civil Code,which positively clarifies the effect of registration of transfer of real property mortgage rights,and to complete the institutional connection between the rules of good faith acquisition and assignment of real property mortgage rights with the main claim.In terms of procedural law,the courts shall provide convenience for the assignee to change the sub-ject of procedure,strictly examine the behavior of circumventing law and execution by rules,and make a reasonable judgment.At the same time,it is also necessary to improve China's real property mortgage regis-tration system,and strive to achieve the ideal state that the appearance of rights is consistent with the attri-bution of property rights.
关键词
不动产抵押权/债权让与/法律风险/不动产登记
Key words
Real Property Mortgage Rights/Transfer of Claims/Legal Risk/Real Property Regis-tration
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