What are the characteristics of a maximum mortgage? What are the legal characteristics of a maximum

The maximum mortgage has the following characteristics:

1) The maximum mortgage is the limit mortgage. When creating a mortgage, the mortgagor and the mortgagee agree on the maximum amount of claims secured by the mortgaged property, and the mortgagee can only enjoy the priority right to be repaid to the mortgaged property within the maximum amount of claims, regardless of how the actual claims increase or decrease in the future. If the actual creditor's rights exceed the maximum limit, the maximum amount of creditor's rights agreed upon at the time of creation of the mortgage shall be repaid in priority; If the maximum amount is not reached, priority shall be given to repayment within the limit of the actual amount of creditor's rights incurred.

2) The maximum mortgage is to provide security for claims that arise in the future. When the maximum mortgage is created, it is not premised on the existence of the main claim, and it is a typical mortgage right to secure future claims. The term "future claim" here refers to a claim that has not yet occurred at the time of the mortgage creation and will be incurred during the mortgage period.

3) The maximum amount of claims secured by the maximum mortgage is determined, but the actual amount incurred is uncertain. When the maximum mortgage is created, the claim has not yet occurred, and in order to guarantee the performance of the future claim, the mortgagor and the mortgagee agree to determine the maximum amount of the guarantee, and the claim is secured within this amount. For example, A uses one of his own real estate as collateral property and signs a maximum mortgage contract with Bank B to guarantee the maximum amount of the creditor's right of up to 3 million yuan to guarantee the performance of the creditor's right that may occur in the future.

4) The maximum mortgage is to secure the claims that occur continuously during a period of time. The certain period mentioned here refers not only to the period during which the creditor's right is incurred, but also to the period during which the mortgage is secured. Successive claims refer to the indefinite number of claims that occur in succession.

For example, if the maximum amount of claims is 3 million yuan and the guarantee period is one year, then within one year, no matter how many claims occur, as long as the total amount of claims does not exceed 3 million yuan, these claims can be repaid in priority on the mortgaged property.

The maximum mortgage is a guarantee for claims that will continue to occur within a certain period of time, and although the scope of the mortgage security can be determined, the specific amount of security cannot be specified. The claim secured by a general mortgage is a specific claim that has already occurred, and the claim is an independent and not continuous claim, and the scope of the security is determined.

Legal analysis: The legal characteristics of the maximum mortgage are relative independence and the non-specificity of the secured claim.

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

Article 421 Where part of the creditor's rights secured by the maximum mortgage is transferred before the determination of the creditor's rights, the maximum mortgage shall not be transferred, unless otherwise agreed by the parties.

Article 422 Before the determination of the creditor's rights secured by the maximum mortgage, the mortgagee and the mortgagor may, by agreement, change the period of determination of the creditor's rights, the scope of the creditor's rights and the maximum amount of the creditor's rights. However, the content of the change must not adversely affect other mortgagees.

Legal analysis: First, a general mortgage secures a single claim, while the number of claims secured by the maximum mortgage is uncertain, which may be one claim or multiple claims. Second, a general mortgage secures a claim that has already occurred, while a maximum mortgage secures a claim that may continue to occur in the future.

Legal basis: Article 395 of the Civil Code of the People's Republic of China 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;

2) 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 transport;

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.

1. The amount of claims guaranteed by the maximum mortgage is determined, but the actual amount of claims incurred is uncertain. In order to ensure the realization of future claims, the mortgagee and the mortgagor agree on the maximum amount of the secured claim, and the mortgagor shall use its mortgaged property to guarantee the claim within this amount.

2. The maximum mortgage is to guarantee the creditor's rights that occur continuously within a certain period of time. The so-called certain period refers to the period during which the creditor's right occurs, and 3. The maximum mortgage is only applicable to the loan contract and the contract signed by the creditor and the debtor for the continuous transaction of a certain commodity within a certain period of time. The main purpose of stipulating that a commodity can be applied to transactions that occur continuously within a certain period of time is to simplify the procedures, facilitate the parties, and facilitate production and operation.

4. The main contract creditor's rights with the highest mortgage shall not be transferred. If the assignment of the main contract claims is allowed, the question of whether the maximum mortgage will be transferred with it, and how to guarantee the claims that occur after the silver envy will inevitably arise. Under the circumstance that China's market mechanism has not yet been perfected, in order to ensure the security of credit and transactions, it is temporarily stipulated that the main contract claims with the maximum mortgage shall not be transferred.

However, if a mortgage is created in accordance with Article 396 of the Civil Code (effective January 1, 2021) in accordance with Article 396 of this Law, the mortgaged property shall be determined when one of the following circumstances occurs:

1) The period for performance of debts has expired and the creditor's rights have not been realized;

2) The mortgagor is declared bankrupt or dissolved;

3) the circumstances of realizing the mortgage as agreed by the parties;

4) Other circumstances that seriously affect the realization of creditor's rights.

1. What are the conditions for determining the claims secured by the maximum mortgage?

Two conditions must be met for the realization of the maximum mortgage: first, the amount of the creditor's rights secured by the mortgage has been determined; Second, the creditor's right has reached the performance period. Therefore, in addition to stipulating the final accounting period, the parties should also stipulate the time limit for the performance of the debt.

However, in the case of the maximum amount of collateral, the determination of the amount of the claim is the main issue. The mortgagee's claim shall be determined in the following circumstances:

1. The agreed period for determining the creditor's rights expires.

2. If there is no agreement on the period for determining the creditor's rights or the agreement is not clear, the mortgagee or mortgagor shall request the determination of the creditor's rights after two years from the date of establishment of the maximum mortgage.

3. New claims are unlikely to occur.

4. The mortgaged property is sealed or seized.

5. The debtor or mortgagor is declared bankrupt or revoked by Sobozao.

6. Other circumstances under which the law stipulates the determination of creditor's rights.

The determination of the claim is very important to the mortgagor.

When the mortgagee realizes the maximum mortgage, if the actual balance of the creditor's rights is higher than the maximum limit, the maximum limit shall be limited, and the excess part shall not have the effect of priority for repayment; If the actual balance of claims is lower than the maximum limit, the collateral shall be repaid in priority to the extent of the actual balance of claims.

Legal Analysis: The general theory holds that the mortgage right is subordinate in terms of occurrence, disposition and extinction. As a special mortgage right, whether the maximum mortgage has subordinate attributes, there are two main propositions among scholars:

The first is the negative theory. This doctrine can also be called the theory of independence, which is the attitude held by the vast majority of scholars, who believe that the claim secured by the maximum mortgage does not necessarily exist in reality at the time of the establishment of the maximum mortgage, and that the maximum mortgage can exist independently from the claim, and does not transfer or extinguish with the assignment or extinction of the principal claim. Therefore, the maximum mortgage is not subordinate, but independent;

The second is eclecticism. This doctrine can also be called a relatively independent doctrine. There are two propositions.

One argument is that the maximum mortgage is not ancillary in the first place, and that after the determination of the maximum mortgage, all other characteristics, including independence, completely disappear except for the extreme amount. Therefore, the determination of the maximum mortgage is collateral, which is no different from an ordinary mortgage, and is subordinate to the secured claim. That is to say, the maximum mortgage is independent until it is determined and subordinate after it is determined.

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; 2) 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 transport; 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) The scope of the 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.