What is a consortium mortgage? What is a mortgage?

Consortium mortgage refers to the form of mortgage in which all the property of the enterprise as a whole is used to secure the creditor's rights. There are two main forms: the Anglo-American floating guarantee system and the French railway consortium system. The Anglo-American floating security system is an English equitable legal system, in which the subject matter of the enterprise is the sum of the present and future property, and the grantor has the right to use, proceed and dispose of the subject property before the security right is exercised; The collateral is specific at the time of the floating guarantee.

The subject matter of the mortgage security of French property is limited to the existing property of the enterprise, i.e., a specific consortium, and the subject matter of the mortgage is specified at the time of creation; Before the mortgage is enforced, the grantor's rights in respect of the subject property are limited and cannot be disposed of arbitrarily.

Characteristics of consortium mortgages.

First, the limited scope of application of consortium mortgage is generated with the development of the market economy and based on the continuous financing needs of enterprises, and it is a financing guarantee.

Second, the subject matter of the consortium mortgage is the collective property, that is, the consortium.

Third, the specificity of the subject matter of the consortium mortgage The so-called specificity of the subject matter means that when the mortgage is established, the subject matter of the mortgage must exist and its value can be determined.

Fourth, the fixity of the subject matter of the consortium's mortgage The fixity of the subject matter means that the separation of the consortium's property is strictly restricted during the mortgage period.

Fifth, the necessity of consortium mortgage registrationConsortium mortgage registration is a valid requirement for the establishment of consortium mortgages, and cannot be established without registered consortium mortgages.

Consortium mortgage is a type of special mortgage, also known as enterprise mortgage. It refers to the mortgage right created with the aggregate of property (including immovable property, movable property and rights) of the enterprise as the subject matter.

Mortgage refers to the right of the debtor or a third party not to transfer the possession of the mortgaged property, but to use the property as security for the creditor's rights, and when the debtor fails to perform the debt, the creditor may be repaid in priority with the price of the property at a discount or by auction.

[Legal basis of filial piety].

Article 394 of the Civil Code.

In order to guarantee the performance of the 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 creditor agrees to realize the mortgage as agreed, 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.

Article 410.

If the debtor fails to perform the debts due or the mortgage rights are realized as agreed by the parties, the mortgagee may agree with the mortgagor to be repaid in priority with the price obtained from the discount of the mortgaged property or the auction or sale of the mortgaged property. If the agreement harms the interests of other creditors, the other creditors may request the people's court to revoke the agreement.

If the mortgagee and the mortgagor fail to reach an agreement on the method of realizing the mortgage right, the mortgagee may request the people's court to auction or sell the mortgaged property.

If the mortgaged property is discounted or sold, it shall refer to the market**.

The property that can form a consortium must first be the property owned or disposed of by the mortgagor and can be used as a mortgage. In the consortium mortgage system in Germany and Japan, the assets that constitute a consortium include: land, buildings and other immovable property owned by the enterprise, movable property such as machinery and equipment, transportation vehicles and other movable property owned by the enterprise, various property rights (such as lease rights, superficial rights, easements, etc.) and industrial property rights arising from the real estate of the enterprise.

For example, Article 11 of Japan's Factory Mortgage Act stipulates that the assets that can form a factory consortium are: (1) land and product parts belonging to the factory; (2) Machinery, appliances, electric columns, wires, pipes, rails and other appurtenances; (3) superficial rights; (4) the right to lease with the lessor's commitment; (5) industrial ownership; (6) The right to use the reservoir.

When determining the scope of property covered by the subject matter of the mortgage, in addition to stipulating which subject matter can constitute a consortium, it is often necessary to make exclusionary provisions to make the scope of the subject matter of the mortgage more clear. Under German law, property that is not related to the operation of a business is excluded from a business consortium; In addition, commodities that cannot be specified in the catalog, purchase and sale prices, and creditor's rights are not allowed to be included in the corporate consortium; In addition, in accordance with the requirements of the principle of specificity, floating commodities (such as semi-finished products and raw materials), business claims (such as receivables), business secrets, and property flowing in after the creation of mortgage rights shall not be included in the scope of the consortium. In addition to the same provisions as German law, Articles 13 and 14 of the Factory Mortgage Act set the following limits on the property that is formed by the foundation

First, those who belong to the foundation of a spine factory are not allowed to participate in other foundations; Second, those who have become the subject of the rights of others or have been seized, temporarily seized, or temporarily disposed of shall not be classified as a factory foundation.

In Japan, where the mortgage system of consortia is well developed, consortia are divided into two categories, namely real estate consortia and property consortia, depending on their composition and method of composition.

A real estate consortium is a consortium that takes the real estate owned by the enterprise as the core, and integrates the movable assets such as machinery and appliances with it as a whole, and makes a consortium directory and treats it as real estate. A consortium mortgage established on such a consortium is called a real estate consortium mortgage. For example, an enterprise takes all its land and factories as the center, and then makes a consortium directory with movable assets such as machinery and boilers installed in the factory buildings, and sets up mortgages.

The composition of a real estate consortium adopts the doctrine of arbitrary choice, and the parties can choose their property at will to form a consortium, so the object of the real estate consortium may not include all the assets of the enterprise. Consortiums such as factory consortium mortgage, mining consortium mortgage, fishery consortium mortgage, harbor transportation consortium mortgage, road transportation consortium mortgage, and tourism facility consortium mortgage are all real estate foundations.

The healthy operation of the enterprise depends on the smooth flow of funds. When the economic situation changes, the scale of the enterprise needs to be expanded, or the enterprise encounters operational obstacles, it is inevitable that the enterprise will raise funds from the outside world. With the rapid retreat of the acquaintance society, stranger interaction has become the norm, and this civil society scene forces the financing of funds to be accompanied by the use of guarantees.

As an aggregate composed of a large number of types of property groups that are inseparable in practice, the security method used by an enterprise should be different from that of a natural person, and a consortium mortgage that fully applies to the needs of the enterprise came into being.

As a form of financing funds secured by creditor's rights, consortium mortgage has its special social function. In modern society, as a unit of socialized large-scale production, the property of an enterprise is a whole composed of immovable property, movable property and property rights. In this enterprise property combination, the enterprise can naturally dispose of each property separately, but the enterprise combination may have special transaction value and status, for example, the allocation of corresponding production machines in the factory, this combination can actually greatly increase the economic value of the two.

Therefore, paying attention to the use of the combination of enterprise property can maximize the utility of property. Under the conditions of modern market transactions, enterprises need to finance funds, and if they only set up security interests in all their movable property, immovable property, and various property rights, it will not only consume energy and effort to increase transaction costs, but also waste the special value of the enterprise's property combination. Therefore, the recognition of consortium mortgages can maximize the utility of corporate assets and promote financial integration.

A property consortium is a consortium that makes a consortium directory based on all of its facilities as a single entity. Since the whole enterprise is one thing, the composition of the property consortium is not an arbitrary choice of the parties, but adopts the principle of natural ownership. Consortiums in railway consortium mortgages, rail consortium mortgages, and canal consortium mortgages fall under this type.

The common feature of the enterprises that can be mortgaged by the consortium is that they all belong to the transportation industry, because they have a very high social public nature, in order to avoid the decomposition of enterprise facilities due to the mortgage of the consortium, resulting in the interruption and obstruction of public utilities, it is particularly emphasized that all the property of the enterprise should be mortgaged to maintain the unity of the enterprise.

1. What is a consortium mortgage?

A consortium mortgage is a type of financing guarantee. Its scope of application is limited, and generally only enterprises with legal personality can use this form of guarantee. Germany, for example, originally created this system in the mortgage of a railway consortium.

There are two types of syndicate mortgages in Japan; The first type is the mortgage of the transportation consortium, such as the railway consortium, the rail consortium, the canal consortium, the motor vehicle transportation consortium mortgage, etc.; The other type is the mortgage of non-transportation consortiums, such as ** consortiums, mining consortiums, fishery consortium mortgages, etc. Unincorporated enterprises and citizens are not allowed to use this type of mortgage. Therefore, in terms of legislation, the relevant countries have classified consortium mortgages into the category of special mortgages, which are resolved through special civil laws.

For example, since the promulgation of Japan's first consortium mortgage law, the Factory Mortgage Law, in 1906, there have been as many as nine consortium mortgage regulations.

What is the collateral of the two oaks and the consortium.

The subject matter of the mortgage of the old man side group is the overall property of the enterprise, that is, the consortium. If a single property or part of the property of an enterprise is mortgaged, it does not constitute a consortium mortgage, but is an ordinary mortgage. If a mortgage is created on the property of the enterprise separately, and several mortgages are used to jointly provide security for the same claim, although the subject matter of the mortgage may include all the property of the enterprise, it does not constitute a consortium mortgage, but is a joint mortgage.

The subject matter of the consortium mortgage actually refers to the things and rights that are combined into one and have a specific character for the economic needs of the enterprise. In the consortium mortgage system in Germany and Japan, the assets that constitute a consortium include not only immovable property such as land and buildings, but also movable property such as machinery and equipment, means of transportation, etc., as well as various property rights (such as lease rights, superficial rights, easements, etc.) and industrial property rights arising from the real estate of enterprises. However, under German law, property that is not related to the operation of a business is excluded from a consortium of companies.

In Japanese law, even though the property that constitutes a corporate consortium includes immovable property, movable property, and rights, it is also treated as immovable property. Therefore, the subject matter of the consortium's mortgage is neither the entire property of the enterprise nor the simple addition of the enterprise's property, but the collection of things and rights involved in the operation of the enterprise that can be specified. It is treated as an immovable property in nature.