Pledge The difference between pledge and mortgage is popular

With regard to the issue of the compatibility of security interests, there are relatively few provisions in the Security Law and its judicial interpretations. Therefore, in resolving the issue of the compatibility of security interests, several basic principles should be implemented: first, the rights of the creditor take precedence over the rights of the debtor; The rights of the direct possessor take precedence over the rights of the indirect possessor.

1. The concept and constitutive elements of the composition of a security interest.

1) The concept of the composition of security interests: The commutation of security interests refers to the question of what type of security interest should be given priority in the event that there are different types of security interests in the same subject matter.

2) The constituent elements of the merger of security interests: 1. There must be several different types of security rights in rem on the same subject matter at the same time; 2. The security interest holder must not be the same person.

2. Types of Claims of Security Interests.

1) The combination of mortgage and pledge.

1. The mortgage right is established first, and the pledge right is established later. It is generally held that in this case, the effect of the mortgage right established first should take precedence, unless the mortgage right can be established without registration.

2. The pledge is established first, and the mortgage is established later. Some people believe that a mortgage cannot be created after the pledge is created, that is, the pledge is established first, and the mortgage is not established later; It has been argued that if the parties agree to create a mortgage after the pledge has been created, the pledge has priority over the mortgage, except for the legally registered mortgage.

Solution: Article 79, Paragraph 1] When the mortgage right and the pledge right of the same property are legally registered, the mortgagee shall have priority over the pledgee to be compensated.

2) The combination of mortgage and lien.

1. The mortgage is established first, and the lien is established later. According to the general theory, the right of retention has priority over the right of mortgage.

2. The lien is established first, and the mortgage is established later. (1) If the owner of the lien creates a mortgage on the lien, the lien shall be established first, and its effect shall be taken precedence. (2) If the lienholder mortgages the lien, the mortgage is invalid because the lienholder is not the owner of the lien.

However, if the lienholder mortgages the lien with the consent of the lien owner, the debtor's rights cannot take precedence over the creditor's rights because the lienholder is the debtor, and the lienholder's lien cannot take precedence over the mortgage.

Solution: Article 79, Paragraph 2] When the mortgage and the lien of the same property coexist, the lienholder has priority over the mortgagee to be compensated.

3) The combination of lien and pledge.

1. The lien is established first, and the pledge is established later. If the pledge is created with the consent of the owner of the lien, the pledge is valid, otherwise it is invalid. However, if the third party acquires it in good faith, the pledge that is established later takes precedence over the lien that is established first.

2. The pledge is established first, and the lien is established later. The effect of a lien established later takes precedence over the effect of a pledge established earlier.

4) The combination of the pledge right and the pledge right.

Solution: Paragraph 1 of Article 94] During the existence of the pledge, in order to guarantee its own debts, with the consent of the pledgee, the pledgee shall be within the scope of the creditor's rights secured by the original pledge, and the excess part shall not have the effect of priority for repayment. The effect of the right of transfer is superior to that of the original right of pledge.

The effect of the first registration is higher than that of the unregistered. are registered, then the mortgage is superior to the pledge. However, the creation of a pledge is based on the transfer of movable property or rights.

At this time, the pledgor has actually transferred its ownership, so it is argued that if the pledge is created earlier, then the mortgage is invalid.

1. The conditions for establishment are different. The pledge must be transferred to possession and actually delivered to the creditor before the pledge can be successfully established. However, the creation of a mortgage does not require the transfer of possession of the collateral, and the collateral is still in the possession of the debtor;

2. The subject matter is different. The subject matter of the pledge is movable property and rights, and the immovable property can only be mortgaged, not pledged; The subject matter of the mortgage is immovable property, usufruct of immovable property and movable property;

3. The guarantee effect is different. In addition to the priority of repayment, the pledge is transferred to the possession of the creditor, so it causes psychological oppression on the pledgor to promote the repayment of the debt on schedule. The mortgage does not have such an effect because it does not transfer the possession of the collateral.

What are the requirements for the establishment of a pledge?

The following requirements must be met for the establishment of a pledge:

1. A written pledge contract must be signed between the creditor and the debtor for the purpose of securing the realization of the claim;

2. The pledge must be transferable and retainerable movable property;

3. The pledge shall be delivered to the pledgee for possession. Because the pledge contract is a practical contract, it is not necessarily established and effective after the contract is signed, and it is only established and effective when the subject matter of the movable property pledge, i.e., the pledge, is delivered.

Legal basis: Article 415 of the Civil Code of the People's Republic of China.

Where both a mortgage and a pledge are created for the same property, the proceeds from the auction or sale of the property shall be determined in the order of repayment in accordance with the time of registration and delivery.

Article 394.

If, in order to guarantee the performance of the debt, the debtor or a third party does not transfer the possession of the property and mortgages the property to the creditor, the debtor fails to perform the due debt or the mortgage rights are realized as agreed by the parties, and the creditor has the right to be repaid in priority for the property.

The debtor or third party provided for in the preceding paragraph is the mortgagor, the creditor is the mortgagee, and the property provided for by the guarantee is the mortgaged property.

Difference Between Pledge and Mortgage:

1. The requirements for establishment and maintenance are different. The maintenance of the mortgage is also not conditional on the mortgagee taking possession of the mortgage; For the establishment of the pledge, in addition to signing the pledge contract, the pledgor shall hand over the pledge to the creditor's right in accordance with the provisions of the pledge contract.

2. The subject matter is different. The subject matter of the mortgage is immovable property, usufruct of immovable property and movable property; The subject matter of the pledge is movable property and other property rights other than the usufructuary right of immovable property.

Article 425 of the Civil Code of the People's Republic of China provides that in order to guarantee the performance of a debt, if the debtor or a third party pledges its movable property to the creditor for possession, and the debtor fails to perform the due debt or the pledge is realized as agreed by the parties, the creditor has the right to be repaid in priority for the movable property.

The debtor or third party provided for in the preceding paragraph is the pledgee, the creditor is the pledgee, and the movable property delivered is the pledged property.

Article 394 of the Civil Code of the People's Republic of China provides that in order to guarantee the performance of a debt, if the debtor or a third party does not transfer the possession of the property and mortgages the property to the creditor, the debtor fails to perform the due debt or the mortgage is realized as agreed by the parties, and the creditor has the right to be repaid in priority for the property.

The debtor or third party provided for in the preceding paragraph is the mortgagor, the creditor is the mortgagee, and the property provided for security is the mortgaged property.

1) Mortgage refers to the debtor or a third party does not transfer possession of its specific property, and uses the property as security for the creditor's right, and when the debtor fails to perform the debt, the hail creditor has the right to be repaid in priority at the price of the property at a discount or auction or sale price in accordance with the law. The property is called the mortgage, the debtor or the third party is called the mortgagor, and the creditor is called the mortgagee. There are two types of mortgage rights: statutory and conventional.

Statutory or not, whether agreed or not, must be in accordance with the provisions; Where the law allows the parties to agree, it may be resolved through negotiation.

The collateral must be the property of the mortgagor that can be transferred, and any property that is prohibited by law from being circulated or not enjoyed by the parties may be used as collateral. A written contract shall be signed for mortgage security, which also includes the type and amount of the principal debt to be guaranteed, the time limit for the debtor to perform the debt, the name, quantity, location, ownership, and scope of the mortgage.

According to the law, the mortgage guarantee shall be registered as a mortgage, the mortgage contract shall take effect from the date of registration, and the authority accepting the mortgage registration shall be the administrative authority of the property, such as the mortgage registration authority for land use rights shall be the land management authority, and the mortgage registration authority for ships and vehicles shall be the registration department for means of transport.

2) Pledge refers to the debtor or a third party to hand over its specific property to the creditor for possession as security for the creditor's right, and when the debtor fails to perform the debt, the creditor has the right to be repaid in priority with the price of the property discounted or auctioned or sold according to law. The property is called a pledge, the person who provides the property is called the pledgee, and the person who has the pledge is called the pledgee. A written contract shall be signed for the pledge guarantee, and the pledge contract shall take effect when the pledge or pledge is transferred to the possession of the pledgee, and the content of the pledge contract shall be basically the same as that of the mortgage contract.

The pledge is the right of the creditor to receive priority in the case of the debtor's or a third party's transfer of the value of the movable property or rights secured by registration in the debtor's non-performance of the due debt or the occurrence of an agreed situation. The mortgage right is the right of the creditor to sell the property of the debtor or a third party without transferring possession and for the performance of the debt to be repaid in priority when the debtor fails to perform the debt or the circumstances agreed by the parties occur. There are the following differences between a mortgage and a pledge:

1.The subject matter of the security is different: (1) The subject matter of the pledge is provided with movable property and rights. (2) The subject matter of mortgage security includes immovable property, usufruct of immovable property and movable property.

2.The requirements for establishment are different: (1) The transfer of possession of the pledge is necessary for the pledge, and the transfer of possession of the pledge is not only the publicity method of the pledge, but also the requirement for its establishment. (2) The establishment of the mortgage right generally requires registration to be established, and what does not need to be registered is the signing of the mortgage contract by the Sen Sleepy Sedan car, and the transfer and possession of the mortgage is not required.

3.The mechanism of security is different: (1) The pledge, in addition to having the effect of priority repayment, also has the effect of possession and retention of the subject matter or its certificate of rights by the legal person, and the pledgee directly controls the subject matter, thus causing psychological oppression on the pledgor to promote the repayment of the debt as scheduled. This lien does not have the effect of a mortgage.

2) The mortgage is a non-possessory security interest, which plays a security role with priority effect.

Legal basis: Civil Code of the People's Republic of China

Article 349:Where the debtor or a third party mortgages the property to the creditor without transferring possession of the property in order to guarantee the performance of the debt, and the debtor fails to perform the debts due or the parties implicitly realize the mortgage right, the creditor has the right to receive priority in repayment of the property.

Article 425:Where the debtor or a third party pledges its movable property to the creditor for the purpose of guaranteeing the performance of the debt, and the debtor fails to perform the due debt or the pledge is realized as agreed by the parties, the creditor has the right to be repaid in priority for the movable property.