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Anonymous users2024-02-06The conflict between property law and security law differs in the following respects:
1) Registration system: In terms of registration system, the property law is much simplified compared with the current system, and restricts the registration agency from using its power to set up obstacles that are very disgusting but helpless to the parties, such as real estate appraisal. Under the Security Law, the registration authority often invokes the provisions of Article 35 to require the parties to provide appraisal reports, and restricts the registered claims to not exceed the appraised value of the immovable property.
In order to adequately protect claims, creditors often have to find ways to inflate the appraised value of the collateral. Property law can be said to have made a small merit in this regard.
2) Scope of lien: The property law expands the scope of the lien to all occasions when creditors are legally in possession of the debtor's movable property (between enterprises), and only when natural persons are involved, the movable property and the creditor's right should belong to the same legal relationship. However, under the Security Law, there are only three types of cases: custody, transportation and processing contracting, which are obviously not commensurate with the complex economic activities and are not conducive to the protection of creditors.
3) Registration of pledge of rights: The provisions of the Property Law on the registration of pledge of rights are far more comprehensive than those of the Security Law. Among them, it is clarified that the equity pledge of ordinary companies shall be subject to the registration of the administrative department for industry and commerce, and the provision that the guarantee law is recorded in the register of shareholders is cancelled, which has the effect of objectively publicizing.
It is worth mentioning that the Property Law provides for the registration of pledges of accounts receivable, which greatly facilitates the carrying out of factoring business by financial institutions.
4) Determination of the main claim of the maximum mortgage: The provisions of the Property Law are relatively comprehensive, but the Security Law does not deal with this, and its judicial interpretation only covers a small amount.
Legal basis: Civil Code of the People's Republic of China
Article 114:Civil entities enjoy property rights in accordance with law.
Property right is the right holder to enjoy direct control and exclusive rights over specific things in accordance with the law, including ownership, usufruct rights and security rights.
Article 115:Objects include immovable and movable property. Where the law provides that rights are the object of real rights, follow those provisions.
Article 116:The types and contents of real rights shall be prescribed by law.
Article 117:Where immovable or movable property is expropriated or requisitioned in accordance with the authority and procedures prescribed by law for the needs of the public interest, fair and reasonable compensation shall be given.
Article 118:Civil entities enjoy creditor's rights in accordance with law.
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Anonymous users2024-02-05Legal Analysis: The Property Law is a basic law enacted by the National People's Congress, and should have priority over the guarantee law enacted by the Standing Committee of the National People's Congress.
Legal basis: Civil Code of the People's Republic of China
Article 209 The creation, alteration, transfer and extinction of real estate rights shall take effect upon registration in accordance with law; Without registration, it shall not take effect, unless otherwise provided by law. The ownership of natural resources belonging to the State in accordance with the law may not be registered.
Article 214 Where the creation, alteration, transfer or extinction of real estate rights shall be registered in accordance with the provisions of law, they shall take effect when they are recorded in the real estate register.
Article 215 The conclusion of a contract between the parties concerning the creation, modification, transfer and extinction of real estate rights shall take effect upon the conclusion of the contract, unless otherwise provided by the law or otherwise agreed by the parties; If the property right is not registered, the validity of the contract shall not be affected.
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Anonymous users2024-02-04The security interests in the Civil Code are as follows:
1.Mortgage. The mortgage right is a security right in which the debtor refers to Qi Zheng or a third party to provide immovable property to the creditor as a guarantee for the repayment of the debt, without changing the possession and repentance.
When the debtor fails to perform the contractual obligations at the expiration of the term, the mortgagee has the right to preferentially choose to be repaid for the price of the mortgaged assets. He may apply to the people's court to auction off the mortgaged assets to satisfy his creditor's rights; If there is any surplus, it should be returned to the mortgagor, and if there is any shortfall, it can still continue to recover from the debtor. However, it is not possible to create a mortgage on assets that cannot be enforced.
2.Pledge. Pledge refers to the right of the debtor or a third party to transfer the movable property or certain property rights to the creditor as security, and when the debtor fails to perform the debt at the expiration of the contract or the cause of the party's commitment occurs, the creditor can preferentially choose the right to be repaid for the movable property or property right.
Among them, the movable property pledge is the movable property pledge, and the property right is the right pledge.
3.Lien. A lien is the right of a creditor to retain the debtor's movable property as security until it is repaid.
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Anonymous users2024-02-03Legal analysis: The security interest holder shall have the right to receive priority in respect of the secured property in accordance with the law in the event that the debtor fails to perform the due debt or the security interest is realized as agreed by the parties, unless otherwise provided by law. The scope of security of a security interest includes the principal claim and its interest, liquidated damages, damages, custody of the secured property and the cost of realizing the security interest.
Where the parties agree otherwise, follow their agreement. Under any of the following circumstances, the security interest shall be extinguished: (1) the principal creditor's right shall be extinguished; (2) the realization of the security interest; (3) the creditor waives the security interest; (4) Other circumstances in which the law stipulates that the security interest is extinguished.
Legal basis: Article 386 of the Civil Code of the People's Republic of China The holder of the security interest shall enjoy the right to be repaid in priority in respect of the secured property in accordance with the law in the event that the debtor fails to perform the debts due or the parties agree to realize the security interest, except as otherwise provided by law.
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Anonymous users2024-02-02Legal analysis: Competing security interests refer to the conflict of security interests in the same property, which is mainly reflected in the conflict between mortgage and mortgage, mortgage and pledge, mortgage and lien.
1. The lien has the highest priority to be repaid (it can also be said to have priority over the mortgage);
2. The registered mortgage has priority over the pledge;
3. Pledge takes precedence over unregistered mortgage.
Legal basis: Civil Code of the People's Republic of China Article 400 Article 14 Where the same chain of bright property is mortgaged to two or more creditors, the price obtained from the auction or sale of the mortgaged property shall be repaid in accordance with the following provisions:
1) Where the mortgage has already been registered, the order of repayment shall be determined in accordance with the time of registration;
2) where the mortgage has been registered before the unregistered payment;
3) If the mortgage is not registered, it shall be repaid in accordance with the proportion of the creditor's rights.
For other registrable security interests, the provisions of the preceding paragraph shall apply by reference to the order of repayment.
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