Whether a registered mortgage can be used against a bona fide third party

A registered mortgage can be used against any third party, including a bona fide third party. In other words, even if there is a bona fide third party, the mortgagee's rights are not affected and can be exercised in accordance with the law.

Judicial Interpretation of the Supreme Court on the Law on Guarantees.

Article 67 During the existence of the mortgage right, if the mortgagor transfers the mortgage without notifying the mortgagee or notifying the transferee, the mortgagee may still exercise the mortgage right if the mortgage has been registered; The transferee who obtains the ownership of the mortgage may pay off all its debts on behalf of the debtor and extinguish the mortgage. The transferee may recover from the mortgagor after paying off the debt.

If the mortgage is not registered, the mortgage shall not be used against the transferee, and if any loss is caused to the mortgagee, the mortgagor shall be liable for compensation.

In the case of a movable property floating charge, even if registered, it may not be used against a buyer who meets the conditions (ordinary business activities, full price paid, acquired ownership).

Article 67 of the Interpretation of the Supreme People's Court of China on Several Issues Concerning the Application of the Security Law of the People's Republic of China stipulates that: "During the existence of the mortgage, the mortgagor transfers the mortgage without notifying the mortgagee or the transferee of the ......If the mortgage is not registered, the mortgage shall not be held against a third party. ”

According to this provision, if the mortgagor has notified the mortgagee and the transferee has been notified of the transfer of the mortgage, the mortgage can be used against a third party even if the mortgage is not registered. This provides a legal basis for the retroactive effect of an unregistered chattel mortgage. However, the protection of the mortgagee under this article is incomplete.

If the mortgagor does not notify the mortgagee but has informed the transferee when transferring the mortgage, the mortgage right shall still not be against the transferee. This is unfair to the mortgagee. In order to balance the interests of the mortgagee and the transferee, and to prevent the chattel mortgage regime from being in danger of losing its effectiveness, an unregistered chattel mortgage may be adversarial to the transferee if the transferee knows or should know that the mortgage has been encumbered and is still transferred; If the transferee does not know and should not have known that the mortgage has been created and is transferred, the unregistered chattel mortgage shall not be adversarial against it.

Legal Analysis: No. After the immovable property mortgage contract is signed, if the mortgagor transfers or disposes of the mortgaged property, the mortgagee has no right to exercise the right of recourse against the person who acquires the property in good faith, but can only require the mortgagor to provide new security or demand timely performance of the debt; Conversely, if it is registered, the mortgagee may claim priority against a third party for repayment of the mortgage or exclude the third party from obtaining it in good faith, and the third party can only claim damages from the debtor.

Specifically, the term "third party" in this article refers to the person who has a real right in the same subject matter, excluding the general creditor of the debtor;

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

Article 394:Where the debtor or a third party mortgages the property to the creditor without transferring the possession of the property in order to guarantee the performance of the debt, and the debtor fails to perform the due debt or the mortgage rights are realized as agreed by the parties, 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.

Article 395:The following property that the debtor or a third party has the right to dispose of may be mortgaged: (1) buildings and other land attachments; (B) the right to use construction land; (3) the right to use maritime space; (4) Production equipment, raw materials, semi-finished products and products; (5) Buildings, ships, and aircraft under construction; (6) means of transportation; (7) Other property that is not prohibited by laws or administrative regulations from being mortgaged. The mortgagor may mortgage the property listed in the preceding paragraph.

Article 400 To establish a mortgage right, the parties shall conclude a mortgage contract in written form. The mortgage contract generally includes the following clauses: (1) the type and amount of the secured claim; (2) the time limit for the debtor to perform the debt; (3) The name and quantity of the mortgaged property; (4) Scope of guarantee.

Article 419:The mortgagee shall exercise the mortgage right within the limitation period for the principal creditor's right; and where it is not exercised, the people's courts will not protect it.

Legal analysis: Our country stipulates different registration effects for different property rights in the registration of immovable property. The ownership and mortgage rights of houses obtained as a result of legal acts adopt the principle of registration validity, and the contract signed by the two parties only produces the effect of creditor's rights, and does not produce the effect of real rights without registration.

However, for the right to contract and manage land, the right to use the land in the four wildernesses, and the easement, the adversarial doctrine of registration is adopted, that is, when the easement contract signed by the parties takes effect, the easement is established immediately when the contract takes effect, and the non-registration also produces the effect of the real right. A bona fide third party refers to a person who does not know the true situation of both parties to the legal relationship, and usually refers to a rights holder who is unaware of the illegal transaction and has already gone through the registration process. "No registration, no confrontation with a bona fide third party.

That is to say, when he obtained the land right, he did not know that there was an easement agreement between you, and you did not apply for easement registration, so you cannot fight him, so you cannot use him as an easement land.

Legal basis: Article 403 of the Civil Code of the People's Republic of China Where chattel is mortgaged, the mortgage right shall be established when the mortgage contract takes effect; Without registration, it is not allowed to confront a bona fide third party.

Legal analysis: When the mortgagor and the mortgagee sign the mortgage contract, if the mortgage is not registered, the mortgage contract cannot be used against a bona fide third party.

Legal basis: Article 404 of the Civil Code of the People's Republic of China A mortgage of movable property shall not be used against a buyer who has paid a reasonable price and obtained the mortgaged property in the normal course of business.

When the mortgagor and the mortgagee sign a mortgage contract, if the mortgage is not registered, the mortgage contract cannot be used against a bona fide third party. Article 404 of the Civil Code stipulates that a mortgage of movable property shall not be used against a buyer who has paid a reasonable price and obtained the mortgaged property in the course of a fictitious business.

1. What is meant by not being able to confront a bona fide third party.

1. After the contract comes into effect, if the mortgagor transfers the mortgaged property, the mortgagee has no right to recover from the third party who obtains the property in good faith, but can only require the mortgagor to provide a new guarantee or require the debtor to repay the debt in a timely manner.

2. After the mortgage contract takes effect, the mortgagor creates a mortgage on the property again, and the subsequent mortgagee registers the mortgage, then, when the mortgage is realized, the subsequent mortgagee can be compensated better than the previous unregistered mortgagee. In the case of mortgage registration, the mortgage has legal effect against a third party.

That is to say, after the registration of the mortgaged property, no matter who the mortgaged property is transferred to, as long as the debt performance period expires and the debtor fails to perform the debt, the mortgagee can realize the mortgage right on the mortgaged property. At the same time, there is also the right to be paid for the unregistered mortgage. It can be seen that in order to effectively protect the realization of its own creditor's rights, the mortgagee should give priority to mortgage registration.

2. What are the ways to exercise the mortgage right?

1. The mortgage of movable property and immovable property is different, and attention should be paid to distinguishing between them. If the following property is mortgaged, the mortgage registration shall be carried out, and the mortgage right shall be established from the time of registration: it is a building and other land attachments; It is the right to use construction land; It is the right to contract and manage wasteland and other land obtained by means of bidding, auction, public negotiation, etc.; Fourth, buildings under construction.

If the following property is mortgaged, the mortgage right shall be established from the time when the mortgage contract takes effect: production equipment, raw materials, semi-finished products, and products; It is a ship, an aircraft under construction; It is a means of transportation. If such property is not registered, it may not be used against a bona fide third party.

1. Clauses in the contract, such as "if the mortgage or pledge is not repaid when due, the collateral or pledge shall belong to the lender" is invalid. Before the expiration of the performance period of the Tan Ran debt, the mortgagee shall not agree with the mortgagor that the mortgaged property shall be owned by the creditor when the debtor fails to perform the due debt. Before the expiration of the debt performance period, the pledgee shall not agree with the pledgor that the pledged property shall be owned by the creditor when the debtor fails to perform the due debt.

At the same time, the mortgagee and the mortgagor shall not stipulate in the contract that the ownership of the mortgage shall be transferred to the creditor when the mortgagee has not been repaid upon the expiration of the debt performance period. When the borrower fails to repay the debt when due, the lender, as the mortgagee, can realize the mortgage in the following three ways: discount, auction and sale.

Whether the mortgage is against a bona fide third party depends on whether the mortgage is registered, and the registered mortgage can be effective against the bona fide third party.

According to Article 225 of the Civil Code [Effect of Registration of Special Movable Property] The creation, alteration, transfer and extinction of real rights in ships, aircraft and motor vehicles shall not be used against bona fide third parties without registration.

1. What are the conditions for the creation of a mortgage.

The condition for the creation of a mortgage is the registration of the mortgage. Where mortgages are created on the four types of property, namely, buildings and other land attachments, the right to use land for construction, the right to contract and operate wasteland and other land acquired by means of bidding, auction, public consultation, etc., and buildings under construction, the mortgage shall be registered, and the mortgage right shall be established from the date of registration.

If the parties have not registered the mortgage, the mortgage contract has taken effect, although the mortgage has not been created. If the contents of the mortgage registration are inconsistent with the contents of the mortgage contract, the contents of the registration shall prevail. If the mortgage is made against a property that has not yet been certified for ownership, the court may find that the mortgage is valid as long as the parties can provide the certificate of right or go through the registration formalities before the conclusion of the debate in the court of first instance.

Production equipment, raw materials, semi-finished products, orange products, means of transportation, ships and aircraft under construction are mortgaged, or movable property as provided for in the Civil Code is mortgaged, and the mortgage right shall be established when the mortgage contract takes effect; Without registration, it is not allowed to confront a circle or a bona fide third party.

Where other property is mortgaged, the mortgage may be registered on a voluntary basis, and the mortgage contract shall take effect from the date of signing. If the parties fail to register the collateral, they shall not confront a third party.