论流通抵押制度及其在中国的构建
发布时间：2018-08-03 12:24
【摘要】：流通抵押权是投资者进行金钱投资和不动产所有人获得融资的媒介,是诱导债权成立的一种法律手段,其成立不以债权的先期存在为前提,而以促成债权的发生为目的。德国的流通抵押权制度,为推动企业生产信贷融资发挥了至关重要的作用,尤其是将抵押权表征在证券上,更是提高了不动产的流通效率。流通抵押权还具有转化程序简单的优点,一般保全型抵押权的转让过程,手续过于繁琐,这样便降低了投资者的投资信心,但流通抵押权,就可以克服转化程序复杂的弊端。本文以德国的流通抵押权制度为研究对象,并以之为基础,分析了我国构建流通抵押权的问题。除引言和结论部分外,本文分如下三个部分：第一部分介绍近代大陆法系抵押权流通性的发展。通过对比德国抵押权体系和法国抵押权体系,认识到流通抵押和保全抵押两大抵押权体系对罗马法的继受程度不同、具体制度设计差异等。近代资本主义经济的发展,对抵押权制度不断提出了新的要求,法国等国家不断适应社会经济发展趋势的要求,进行对抵押权制度进行完善,出现了抵押权流通性的新动态。第二部分对德国流通抵押制度进行了深入分析。德国的流通抵押权具有独立性,是诱导债权发生的手段,不以先期债权存在为前提。流通抵押权的客体一般是价值比较大的不动产。在流通抵押权的设立方面,需要对抵押物进行登记,由登记机关进行审查之后发行证券,在抵押证券转让时需要双方达成合意、交付证券、进行公证。流通抵押权的顺位,实行次序固定原则。德国流通抵押制度的优越性在于抵押权诱发债权产生、抵押权的流通性带动债权流通,并且抵押权仍有保全债权的功能。第三部分提出对我国构建流通抵押制度的设想。在整理立法安排上,笔者倾向于制定单独的《流通抵押法》；在具体制度设计上,为保障流通抵押权的流通性,采纳抵押权独立性原则、完善公示公信原则等,并实现抵押权证券化。
[Abstract]:The circulating mortgage is the medium for investors to invest in money and the owner of immovable property to obtain financing. It is a legal means to induce the establishment of creditor's rights, which is not based on the pre-existence of creditor's rights, but for the purpose of promoting the occurrence of creditor's rights. The system of circulation mortgage in Germany has played a vital role in promoting enterprise production credit financing, especially in the representation of mortgage on securities, and has improved the circulation efficiency of real estate. Circulation mortgage also has the advantage of simple transformation procedure. The procedure of transfer of general preservation mortgage is too complicated, which reduces the investor's investment confidence, but the circulation mortgage can overcome the disadvantages of complex transformation procedure. This paper takes the circulation mortgage system of Germany as the research object, and based on it, analyzes the problem of constructing the circulation mortgage in our country. In addition to the introduction and conclusion, this paper is divided into the following three parts: the first part introduces the development of the circulation of mortgage in modern civil law system. By comparing the German mortgage system with the French mortgage system, it is recognized that the two mortgage systems, circulation mortgage and preservation mortgage, have different degrees of acceptance of Roman law and different system designs. With the development of modern capitalist economy, new demands have been put forward to the mortgage system, and France and other countries have constantly adapted to the demands of the social and economic development trend to perfect the mortgage system, and a new trend of circulation of mortgage has emerged. The second part of the German circulation mortgage system in-depth analysis. The circulation mortgage of Germany is independent and is a means to induce the occurrence of creditor's rights, and does not presuppose the existence of advance creditor's rights. The object of circulating mortgage is real estate with relatively large value. In the establishment of the circulating mortgage, it is necessary to register the mortgage, issue securities after examination by the registration authority, and reach agreement when the mortgage securities are transferred, deliver the securities and notarize. The order of the circulating mortgage shall be fixed in order. The advantage of German circulation mortgage system is that mortgage induces creditor's rights, the circulation of mortgage leads to the circulation of creditor's rights, and mortgage still has the function of preserving creditor's rights. The third part puts forward the idea of constructing the circulation mortgage system in our country. In the arrangement of legislation, the author tends to make a separate "Circulation Mortgage Law", in the specific system design, in order to ensure the circulation of circulation mortgage, adopt the principle of the independence of mortgage, perfect the principle of public information, etc. And realize mortgage securitization.
【学位授予单位】：北京交通大学
【学位级别】：硕士
【学位授予年份】：2015
【分类号】：D923.2
本文编号：2161742
[Abstract]:The circulating mortgage is the medium for investors to invest in money and the owner of immovable property to obtain financing. It is a legal means to induce the establishment of creditor's rights, which is not based on the pre-existence of creditor's rights, but for the purpose of promoting the occurrence of creditor's rights. The system of circulation mortgage in Germany has played a vital role in promoting enterprise production credit financing, especially in the representation of mortgage on securities, and has improved the circulation efficiency of real estate. Circulation mortgage also has the advantage of simple transformation procedure. The procedure of transfer of general preservation mortgage is too complicated, which reduces the investor's investment confidence, but the circulation mortgage can overcome the disadvantages of complex transformation procedure. This paper takes the circulation mortgage system of Germany as the research object, and based on it, analyzes the problem of constructing the circulation mortgage in our country. In addition to the introduction and conclusion, this paper is divided into the following three parts: the first part introduces the development of the circulation of mortgage in modern civil law system. By comparing the German mortgage system with the French mortgage system, it is recognized that the two mortgage systems, circulation mortgage and preservation mortgage, have different degrees of acceptance of Roman law and different system designs. With the development of modern capitalist economy, new demands have been put forward to the mortgage system, and France and other countries have constantly adapted to the demands of the social and economic development trend to perfect the mortgage system, and a new trend of circulation of mortgage has emerged. The second part of the German circulation mortgage system in-depth analysis. The circulation mortgage of Germany is independent and is a means to induce the occurrence of creditor's rights, and does not presuppose the existence of advance creditor's rights. The object of circulating mortgage is real estate with relatively large value. In the establishment of the circulating mortgage, it is necessary to register the mortgage, issue securities after examination by the registration authority, and reach agreement when the mortgage securities are transferred, deliver the securities and notarize. The order of the circulating mortgage shall be fixed in order. The advantage of German circulation mortgage system is that mortgage induces creditor's rights, the circulation of mortgage leads to the circulation of creditor's rights, and mortgage still has the function of preserving creditor's rights. The third part puts forward the idea of constructing the circulation mortgage system in our country. In the arrangement of legislation, the author tends to make a separate "Circulation Mortgage Law", in the specific system design, in order to ensure the circulation of circulation mortgage, adopt the principle of the independence of mortgage, perfect the principle of public information, etc. And realize mortgage securitization.
【学位授予单位】：北京交通大学
【学位级别】：硕士
【学位授予年份】：2015
【分类号】：D923.2
【相似文献】
相关期刊论文 前1条
1 陈华彬;;从保全抵押权到流通抵押权——德国不动产担保权的演进史[J];中国不动产法研究;2007年00期
相关硕士学位论文 前3条
1 周梦梦;论流通抵押制度及其在中国的构建[D];北京交通大学;2015年
2 尹猛;论流通抵押[D];河南大学;2007年
3 谢耀宇;论我国流通抵押制度的建构[D];西南财经大学;2007年
，本文编号：2161742
本文链接：https://www.wllwen.com/falvlunwen/minfalunwen/2161742.html
