我国最高额抵押制度研究
发布时间：2019-05-09 01:48
【摘要】：最高额抵押权作为担保抵押制度中的一种特殊形式,具有一般抵押权所不具备的制度优越性。从其发展历程来看,最高额抵押权是在商品经济社会环境下,应融资需求,从一般抵押权中演变而来。随着经济活动的日益频繁,实践中不断出现连续性的交易现象,进而对最高额抵押权这种高效便捷的抵押方式的应用需求日益迫切,成为金融机构、公司广泛采用的担保形式。但是,在我国法律制度中最高额抵押权却仍处于边缘地位,《担保法》中有关最高额抵押权的规定相对粗略,《物权法》在内容上进行了完善,但与域外相关法律制度相比,仍存在一些局限与弊端,因制度缺陷而引发的最高额抵押纠纷亦有持续增加的趋势。本文通过对比分析域内外最高额抵押权的概念、内容及制度价值,在反思我国最高额抵押权的局限性的基础上,并结合实践对我国最高额抵押制度的应然性进行探析。除了导论和结语,全文共分三个部分:第一部分即第二章,从剖析最高额抵押权的概念出发,分析最高额抵押权除了具备一般抵押权的基本特征外,还具有以下特征;担保债权具有不确定性,具有特殊的从属性,设立时需要约定决算期以及最高限额。结合最高额抵押制度的历史沿革,对最高额抵押权的制度价值进行分析。第二部分是第三章,对域外最高额抵押制度与我国相关立法在最高额抵押权的设定、变更、转让、确定等方面的立法规定的差异进行了分析研究,旨在寻求域外法律制度中的可借鉴之处。关于最高额抵押权的设定,主要分析了域内外有关最高额抵押权担保的债权范围、设定以及登记的相关制度差异。转让方面从被担保债权的转让及最高额抵押权的转让两个方面对域外的相关制度进行了比较,并结合我国《物权法》的相关规定分析最高额抵押权的转让规则。对于最高额抵押权的确定,在对确定的必要性进行分析的前提下重点研究了最高额抵押权确定的原因以及确定后的效果。第三部分是本文的第四章,阐述我国最高额抵押权在实践中暴露出的制度弊端,主要体现在:登记方式并无明确规定,影响最高额抵押权的及时生效;变更缺乏明确的限制机制,加剧了其他债权人实现债权的风险;过度限制转让,不利于实现简化融资交易的制度价值;最高额抵押权的确定需待决算期届满,阻碍了被担保债权的及时实现。对此我国立法应当全面从最高额抵押权的设立、变更、转让等方面进行制度完善,并借鉴国外先进的立法经验,建立最高额抵押的衡平制度,以此进一步完善我国的最高额抵押制度。
[Abstract]:As a special form of the security mortgage system, the maximum mortgage has the system superiority which the general mortgage does not have. From its development course, the highest mortgage is the demand for financing, which evolved from the general mortgage under the social environment of commodity economy. With the increasing frequency of economic activities, continuous transactions continue to appear in practice, and then the demand for the application of maximum mortgage, an efficient and convenient mortgage, is becoming more and more urgent, and it has become a widely used form of guarantee for financial institutions and companies. However, the maximum mortgage in the legal system of our country is still on the edge. The provisions of the guarantee Law on the maximum mortgage are relatively rough. The property Law has improved the content, but compared with the relevant foreign legal system, There are still some limitations and drawbacks, and the maximum mortgage disputes caused by system defects are also increasing. Based on the comparative analysis of the concept, content and institutional value of the maximum mortgage in China, this paper analyzes the necessity of the maximum mortgage system in China on the basis of reflecting on the limitations of the maximum mortgage in China. In addition to the introduction and conclusion, the full text is divided into three parts: the first part is the second chapter, from the analysis of the concept of maximum mortgage, the analysis of the maximum mortgage in addition to the basic characteristics of the general mortgage, but also the following characteristics; The secured creditor's right has uncertainty and special subordinate attribute. When it is set up, it needs to specify the final account period and the maximum limit. Combined with the historical evolution of the maximum mortgage system, this paper analyzes the system value of the maximum mortgage. The second part is the third chapter, which analyzes and studies the differences between the overseas maximum mortgage system and the relevant legislation of our country in the aspects of the establishment, change, transfer and determination of the maximum mortgage. The purpose of this paper is to find out what can be used for reference in the foreign legal system. With regard to the establishment of the maximum mortgage, this paper mainly analyzes the scope of the creditor's right, the establishment and the system difference of the registration of the maximum mortgage guarantee inside and outside the domain. In the aspect of assignment, this paper compares the relevant systems outside China from two aspects: the transfer of secured claims and the transfer of maximum mortgage, and analyzes the transfer rules of maximum mortgage in combination with the relevant provisions of the property Law of our country. On the basis of the analysis of the necessity of the determination of the maximum mortgage, this paper focuses on the reasons for the determination of the maximum mortgage and the effect of the determination. The third part is the fourth chapter of this paper, which expounds the drawbacks of the system exposed in the practice of the maximum mortgage in our country, which is mainly reflected in the following aspects: there is no clear regulation on the way of registration, which affects the timely entry into force of the maximum mortgage; The lack of a clear restriction mechanism aggravates the risk of other creditors to achieve claims, excessive restrictions on transfers are not conducive to the realization of simplified financing transactions of institutional value; The determination of the maximum mortgage right needs to expire, which hinders the realization of the secured creditor's right in time. In view of this, the legislation of our country should perfect the system from the aspects of the establishment, change and transfer of the maximum mortgage in an all-round way, and draw lessons from the advanced legislative experience of foreign countries, and establish the equity system of the maximum mortgage. In order to further improve the maximum mortgage system in China.
【学位授予单位】：吉林财经大学
【学位级别】：硕士
【学位授予年份】：2015
【分类号】：D923.2
本文编号：2472386
[Abstract]:As a special form of the security mortgage system, the maximum mortgage has the system superiority which the general mortgage does not have. From its development course, the highest mortgage is the demand for financing, which evolved from the general mortgage under the social environment of commodity economy. With the increasing frequency of economic activities, continuous transactions continue to appear in practice, and then the demand for the application of maximum mortgage, an efficient and convenient mortgage, is becoming more and more urgent, and it has become a widely used form of guarantee for financial institutions and companies. However, the maximum mortgage in the legal system of our country is still on the edge. The provisions of the guarantee Law on the maximum mortgage are relatively rough. The property Law has improved the content, but compared with the relevant foreign legal system, There are still some limitations and drawbacks, and the maximum mortgage disputes caused by system defects are also increasing. Based on the comparative analysis of the concept, content and institutional value of the maximum mortgage in China, this paper analyzes the necessity of the maximum mortgage system in China on the basis of reflecting on the limitations of the maximum mortgage in China. In addition to the introduction and conclusion, the full text is divided into three parts: the first part is the second chapter, from the analysis of the concept of maximum mortgage, the analysis of the maximum mortgage in addition to the basic characteristics of the general mortgage, but also the following characteristics; The secured creditor's right has uncertainty and special subordinate attribute. When it is set up, it needs to specify the final account period and the maximum limit. Combined with the historical evolution of the maximum mortgage system, this paper analyzes the system value of the maximum mortgage. The second part is the third chapter, which analyzes and studies the differences between the overseas maximum mortgage system and the relevant legislation of our country in the aspects of the establishment, change, transfer and determination of the maximum mortgage. The purpose of this paper is to find out what can be used for reference in the foreign legal system. With regard to the establishment of the maximum mortgage, this paper mainly analyzes the scope of the creditor's right, the establishment and the system difference of the registration of the maximum mortgage guarantee inside and outside the domain. In the aspect of assignment, this paper compares the relevant systems outside China from two aspects: the transfer of secured claims and the transfer of maximum mortgage, and analyzes the transfer rules of maximum mortgage in combination with the relevant provisions of the property Law of our country. On the basis of the analysis of the necessity of the determination of the maximum mortgage, this paper focuses on the reasons for the determination of the maximum mortgage and the effect of the determination. The third part is the fourth chapter of this paper, which expounds the drawbacks of the system exposed in the practice of the maximum mortgage in our country, which is mainly reflected in the following aspects: there is no clear regulation on the way of registration, which affects the timely entry into force of the maximum mortgage; The lack of a clear restriction mechanism aggravates the risk of other creditors to achieve claims, excessive restrictions on transfers are not conducive to the realization of simplified financing transactions of institutional value; The determination of the maximum mortgage right needs to expire, which hinders the realization of the secured creditor's right in time. In view of this, the legislation of our country should perfect the system from the aspects of the establishment, change and transfer of the maximum mortgage in an all-round way, and draw lessons from the advanced legislative experience of foreign countries, and establish the equity system of the maximum mortgage. In order to further improve the maximum mortgage system in China.
【学位授予单位】：吉林财经大学
【学位级别】：硕士
【学位授予年份】：2015
【分类号】：D923.2
【参考文献】
相关期刊论文 前6条
1 许明月;;论现代担保市场法律规制的理念与模式[J];中国法学;2013年06期
2 尹田;;抵押权效力若干问题研究[J];河南财经政法大学学报;2013年01期
3 郭明瑞;;关于共同抵押权的若干问题[J];北方法学;2012年01期
4 王全弟;盛宏观;;抵押权顺位升进主义与固定主义之选择[J];法学;2008年04期
5 孙鹏;;论担保物权的实行期间[J];现代法学;2007年06期
6 许明月;;抵押物转让的立法模式选择与制度安排——兼论我国担保物权立法对抵押权涤除制度的取舍[J];现代法学;2006年02期
，本文编号：2472386
本文链接：https://www.wllwen.com/falvlunwen/minfalunwen/2472386.html
