中国物权法领域抵押权的主要内容与发展方向

• 영문명: Cores and trends of the Rights to mortgages in the Real Right Law of China
• 발행기관: 한국민사법학회
• 저자명: 최건원(崔建远 )(Cui Jianyuan)
• 간행물 정보: 『민사법학』제39-2호, 187~295쪽, 전체 109쪽
• 주제분류: 사회과학 > 사회과학일반
• 파일형태: PDF
• 발행일자: 2007.12.31

국문 초록

中華人民共和國擔保法(이하 “중국담보법”이라 함) 과 中華人民共和國都市不動産管理法(이하 “부동산관리법”이라 함)은 모두 담보물권에 관하여 규정하고 있다. 中華人民共和國物權法(이하 “중국물권법”이라 함)은 위의 담보법과 부동산관리법을 승계 및 수정을 통하여 중국물권법 제4편 담보물권 중 제15장 “일반 규정”과 제16장 “저당권”을 넣음으로써 기본규칙을 일괄 규정하였다. 본문 중 23장까지는 중국 물권법 중의 저당권의 주요 내용을, 마지막 두 장에서는 중국물권법의 발전방향을 전망하려고 한다.

영문 초록

≪中华人民共和国担保法≫(以下简称为中国担保法)、≪中华人民共和国城市房地产管理法≫(以下简称为中国城市房地产管理法)对抵押权均设有规定，≪中华人民共和国物权法≫(以下简称为中国物权法)对此既有承继又有修正及发展，设置了第四编“担保物权”第十五章“一般规定”和第十六章“抵押权”，统一规定了抵押权的基本规则。本文的前二十三部分介绍中国物权法领域抵押权的主要内容，后两部分展望中国物权法的发展方向。The rights to mortgages prescribed in the Real Right Law of China include the right to mortgages of the realties, right to mortgages of the chattels, inventory mortgages, floating charge, joint mortgages, maximum mortgage, statutory mortgages. According to the Real Right Law, the properties that can be mortgaged are buildings and other land appurtenances; the construction land use rights; contract operating rights of, among others, wasteland acquired by tendering, auction, public consultations and such other methods; manufacturing equipment, raw materials, semi-finished products and products; building, vessel or aircraft under construction; means of transportation; and other properties which may be mortgaged as prescribed by the laws and administrative rules and regulations. The right to mortgage has the characteristics of dependency, specificity, impartibility, subrogation in rem. The subrogation prescribed in the active laws of China is set upon the insurance proceeds, indemnity or compensation. However, it would be more reasonable to set on the rights of claim to the insurance proceeds, indemnity or compensation. A mortgage contract is indispensable to establish the right to mortgage for the most time. In the event of the mortgage of the properties as the construction land use rights; buildings and other land appurtenances; and contract operating rights of, among others, wasteland acquired by tendering, auction, public consultations and such other methods, the formalities for mortgage registration shall be completed and the mortgage shall be established from the time of registration. The mortgage of vessel, aircraft under construction or any movable properties shall be established from the time of effectiveness of the mortgage contract; such mortgage shall not be effective against a bona fide third party if not registered. Where a main thing is mortgaged, its accessories shall be mortgaged together, except that the mortgaged property and its accessories are separately owned by two or more entities. Similarly the accessory rights are mortgaged together with the main right. The right to mortgage is effective to appendix, mixture and artifact, but there is an exception that the mortgaged property seized by the people’s court, the mortgagee shall have the right to receive the natural fruits or statutory fruit of such mortgaged property, except those of the obligor who shall settle the statutory fruit but has not been notified by the mortgagee of the same. After the mortgage of construction land use rights, any newly constructed building on such land shall not be treated as mortgaged property. Where the mortgage is registered, it shall be fully settled in accordance with the registered priority ranking; in the event of the same ranking, it shall be fully settled in accordance with the proportions of the claim. The mortgage registered shall have priority in being repaid over the mortgaged that is not registered. The mortgagee may dispose and maintain the right to mortgage. In the event that any harm is done to the mortgagee as a result of any infringement upon a right to mortgage, the mortgagee may exercise the right to demand in rem or seek damages. The mortgagor may establi

목차

Ⅰ、中国物权法领域抵押权的类型

Ⅱ、中国物权法领域的抵押财产

Ⅲ、中国物权法领域抵押权的属性

Ⅳ、中国物权法领域抵押权的设立

Ⅴ、中国物权法领域抵押权的效力是否及于从物

Ⅵ、中国物权法领域抵押权的效力是否及于从权利

Ⅶ、中国物权法领域抵押权的效力是否及于附合物、混合物、加工物

Ⅷ、中国物权法领域抵押权的效力是否及于孳息

Ⅸ、新增建筑物

Ⅹ、中国物权法领域抵押权的顺位

Ⅺ、抵押权人的权利

Ⅻ、抵押人的权利

XⅢ、抵押权与租赁权

XIV、动产抵押权与动产质权

XV、抵押权与建设工程款优先受偿权

XVI、动产抵押权与留置权

XVII、抵押权与保证

XVIII、抵押权的实现

XIX、抵押权与诉讼时效

XX、共同抵押权

XXI、最高额抵押权

XXII、浮动抵押权

XXIII、抵押权物上代位性的完善

XXIV、对抵押物转让的限制不宜过严

키워드

Real Right Law of PRC Right to mortgage mortgaged property mortgage registration effectiveness