Keywords: chattel mortgage; Publicity of real right; The right of recourse and effectiveness of mortgage; Transaction security
During the mortgage period, the mortgagor transfers the mortgaged property to a third party, which leads to the change of legal relationship; What is the legal effect among mortgagee, mortgagor and assignee? Especially when the transferee accepts the collateral in good faith, does the law give priority to the transferee in good faith or the mortgagee with priority rights? Around these problems, Article 49 of China's Guarantee Law and Article 67 of the Supreme People's Court's Interpretation of Several Issues Concerning the Application of Guarantee Law have made corresponding provisions; Civil law scholars have also conducted fruitful theoretical research and put forward various system design schemes. However, when legislators and most scholars study the transfer of collateral, they obviously ignore the significance of the difference between chattel mortgage and real estate mortgage: in the field of real estate, the law adheres to the principle of compulsory registration of changes in property rights (publicity), and mortgage rights, like other real estate rights, must be reflected in the register of the registration authority. The transferee has the obligation to consult the register when transferring the collateral, and it is easy to find the pre-set mortgage, so it is impossible for the bona fide transferee of the real estate collateral to appear legally. In the field of movable property, the principle of compulsory registration of real right change is not implemented, and the transferee can completely trust the mortgagor's direct possession of the collateral, and may not actually know the existence of the priority mortgage, so it is very easy to have a conflict of interest between the mortgagee and the bona fide transferee of the collateral. It is particularly important to study and design a legal mechanism to balance this conflict of interest, so we will focus on the transfer of chattel collateral; Considering that the relationship between sale and purchase is the normal state of the transfer of the subject matter, and in order to save space, the so-called transfer of chattel collateral in this paper is centered on sale.
1. polarization: conflict of interest between mortgagee and bona fide transferee.
According to the theory of institutional compulsion, the setting of logical premise often restricts the possible range of logical choice [1]. In order to make the range of logical choice exquisite and appropriate, the logical premise must be set accurately. Obviously, the transfer of chattel collateral has attracted much attention because it may lead to the contradiction and confrontation between the mortgagee and the bona fide transferee. It has always been the sacred mission of law to calm disputes and realize distributive justice. Any specific legal system design, the closer it is to completing the legal mission, the more scientific and vital it will be. In view of this, this paper takes the irreconcilable conflict of interest between the mortgagee of movable property and the bona fide transferee of collateral as the preset logical premise, and all discussions, evaluations and conclusions are closely centered around this logical premise. Then, what causes the bipolar opposition between the mortgagee of movable property and the transferee of collateral? Under what circumstances is the "life-and-death" fighting scene caused by bipolar opposition the most "tragic"?
(1) The resistance of chattel mortgage registration and the credibility of mortgage possession cannot be mutually exclusive.
In the field of chattel property right change, the most classic embodiment of right conflict is the opposition between the real obligee and the bona fide third party because they have no right to dispose of it. The legitimate rights of the real obligee deserve protection, and so does the transaction expectation of the bona fide third party. The former represents quiet property order, while the latter focuses on dynamic transaction security. Facing the development trend of civil and commercial law from static to dynamic, modern civil and commercial law favors bona fide third parties and creates bona fide acquisition system. Objectively speaking, in the chattel mortgage relationship, the mortgagor's unauthorized disposal of collateral is not the same as selling other people's goods privately, because the mortgagor has the ownership of collateral, and the core power of ownership is the right to dispose, so it is difficult for the mortgagor to say that he has no right to dispose of his own things. Although-as mentioned later-there are also legislations and theories that advocate restricting the mortgagor's right to dispose, it is still undeniable that there is a great difference between those who restrict the right to dispose and those who have no right to dispose at all. More importantly, in the case of bona fide acquisition in the traditional civil law, the movable property is occupied by the unauthorized disposition, and the third party completely believes that the unauthorized disposition is the legal obligee based on the credibility, while the real obligee's rights lack any publicity means, so it is logical and reasonable to sacrifice the undisclosed rights to preserve the trust in the wrong publicity; In chattel mortgage, the transferee of the mortgaged property can fully trust the possession of the mortgagor, but the mortgagee can have the legal publicity method of registration. Therefore, there is a conflict between the right of legal publicity and trust protection, which is undoubtedly a more intense conflict; In the face of such a fierce conflict, it is obviously unreasonable to abandon the mortgagee without thinking and accommodate the goodwill assignee of the collateral. It is a betrayal of the unified principle of the choice of the way of property right publicity in modern security legislation to deduce the "initiator" of the "big competition" between "the right to publicize by legal means" and "trusting the way of legal publicity". Originally, the method of property rights publicity should be unified, and the same type of property rights should also be publicized in the same way. In order to practice the principle of unification of publicity methods, civil law in continental law system generally publicizes real property rights by registration, while real property rights in movable property rights are publicized by possession. However, since the chattel mortgage entered the legal hall, this dual pattern of property rights publicity has to be broken: because it is not necessary to transfer the possession of the subject matter when setting the chattel mortgage, it is actually impossible for the chattel mortgage to be publicized through the "natural" publicity method of chattel property rights-possession; In order to realize the social ideal of real right publicity, the law has to find another way to show the establishment and existence of chattel mortgage through registration. The crux of the problem is that since the transferee of the collateral can trust the integrity of the rights of the mortgagor who owns the collateral, there is no need to pay attention to other rights of registration and publicity; Accordingly, since the mortgage is publicized in a legal way, it should be presumed that there is no bona fide third party after publicity. If we admit the resistance of registration (publicity) at this time, we will inevitably deny the credibility of possession (publicity); On the other hand, if we acknowledge the credibility of possession, we will inevitably deny the opposition of registration.
It should be noted that although the current legislative structure of chattel mortgage has given birth to the great possibility of conflict between the mortgagor and the transferee of collateral, this conflict is not necessarily everywhere. If the mortgage is not registered, the lack of publicity of the mortgage will of course give way to the ownership of the transferee, even if the transferee knows the fact that the mortgage exists. In the case of mortgage registration, if the transferee knows or should know the fact that the mortgage exists, that is, the transferee is malicious, and its interest protection is certainly not as good as that of the mortgagee. The ways for the transferee to know about the mortgage right are both the mortgagee and mortgagor's initiative, and also the accidental initiative in the registration authority. Like the proof of the third party's goodwill in bona fide acquisition, the mortgagee should bear the burden of proof of the transferee's malice without proving his own goodwill.
(2) The core of the conflict of interest between the mortgagee of movable property and the bona fide transferee: Who will bear the risk of being unable to recover from the mortgagor?
As mentioned above, under the current legislative framework of chattel mortgage, there is a profound and lasting contradiction between the resistance of mortgage registration and the credibility of mortgage possession, and the interest state externalized by this contradiction is a problem worthy of good study. Different from bona fide acquisition of movable property, when the mortgagor transfers the collateral without authorization, there is no possibility that the mortgagee and the transferee will compete for the ownership of the collateral. Because, as a value right, the mortgagee only cares about the exchange value of the collateral, but has little enthusiasm for the physical form and ownership of the collateral. As long as his creditor's rights can be satisfied by the debtor's repayment or the mortgagor's responsibility (except property guarantee), there is no need to recover the collateral from the transferee. Only when the debtor or mortgagor can't pay off his creditor's rights in other ways, the mortgagee can ask the transferee to discount, auction or sell the mortgaged property and its price. From the transferee's point of view, even if he loves the physical form and legal ownership of the collateral, the transferee can bear the mortgage burden because there is no mortgagee to compete with him at this time. Even if the mortgagee claims the exchange value of the collateral, the transferee can realize the mortgagee by exercising the right of extinction or paying off the debtor on his behalf, and then ask the mortgagor to bear corresponding responsibilities for himself. From this point of view, if the creditor can realize the creditor's right to the debtor (especially the mortgagor) by means other than exercising the mortgage right, or the assignee can easily get compensation from the mortgagor after exercising the right of extinction and paying off on his behalf, then there will be no conflict between the mortgagee and the assignee around the transfer of collateral. The root of the conflict lies in that it is difficult or impossible for both the mortgagee and the bona fide transferee to get enough compensation from the mortgagor, that is, the mortgagor is unable to pay off due to lack of resources. It should be emphasized that the so-called "inability to pay off" here not only refers to the inability of the mortgagor to pay off the principal creditor's rights secured by the mortgage when it expires, but also refers to the inability of the mortgagor to pay off the creditor's rights when dealing with the conflict between the mortgagee and the assignee-this means that the mortgagor has squandered the proceeds from the transfer of the collateral without leaving it to pay off the creditor's rights. To sum up, the essence of the conflict between the mortgagee and the assignee is who suffers the risk that cannot be recovered from the mortgagor.
Second, there is no way for mountains and rivers to be suspicious, and there is another village where the flowers are bright: the existing legislation and theory have failed.
Facing the bipolar opposition between the mortgagee and the mortgagee, we need corresponding system design to reconcile this contradiction and balance the interests of both parties as much as possible, instead of simply affirming the interests of one party and denying or ignoring the interests of the other. It should be said that the priority protection of mortgagee or assignee has theoretical basis and social support; In addition, there is no obvious argument that one value orientation is more important than another. It is a great pity that the existing legislation and theories related to this do not grasp this point well, and even show the defects of the dislocation of the opposite poles between the mortgagee and the assignee. Below, I will comment on the contents and defects of the institutional schemes designed by these legislations and theories.
(a) the transferee's price settlement
Both the French Civil Code and the Japanese Civil Code stipulate the payment of the transferee's price in real estate mortgage. The general view is that chattel mortgage can also be applied by analogy. Accordingly, the transferee of collateral can replace the debtor to pay off the secured principal debt to the mortgagee, thus ensuring the transferee's complete ownership by eliminating the mortgage. Objectively speaking, it is a good way to ensure that the transferee's ownership of the collateral is not taken away by paying off the mortgage at a cost, but its defects are also obvious: after the transferee pays the price of the collateral to the mortgagor, it will undoubtedly make the transferee pay twice the price (that is, the price of purchasing the collateral and the amount of the debtor's debt) to maintain its full ownership of the transferee. The second payment has little protection for the transferee-because the essence of the conflict between the mortgagee and the transferee is who bears the risk that cannot be recovered from the mortgagor, and the transferee's second payment means bearing the risk that cannot be recovered from the mortgagor. Such a system design actually recognizes the retroactivity of the mortgage, and it is not advisable to tilt the legal balance completely to the mortgagee.
(B) mortgage elimination system
Both the French Civil Code and the Japanese Civil Code have provisions on the system of mortgage rescission, and the transferee of collateral can pay a certain amount of rescission money to the mortgagee to cancel the mortgage. ○3 In fact, the transferee's exercise of the right of extinction also means paying twice-the purchase price of collateral and the price of extinction, which is also a disguised recognition of the effectiveness of the right of recourse of the mortgage, and is actually giving priority to protecting the mortgagee, just like paying off the price.
(c) registered confrontation
The root of the conflict between the mortgagee and the assignee lies in the imperfection of the chattel mortgage publicity system. Mr. Wang Zejian believes that "there are five ways to overcome the lack of publicity of chattel mortgage without subject matter: intention establishment, written establishment, registration establishment, intention registration confrontation and written registration confrontation" [3]. Among them, the written registration confrontation system has not only been supported by many scholars, but also adopted by the Law on Secured Transactions of Movable Property and the Law on Guarantee in Taiwan Province. The author thinks that there is no difference between the intention registration confrontation and the written registration confrontation in the real right publicity, so it is collectively called "registration confrontation". Registration confrontation gives the parties full autonomy: in order to strengthen the objectivity of their mortgage, the mortgagee can apply to the registration authority for mortgage registration, and the registered mortgage can confront all future real rights; If the mortgagee does not want to expose his property or has insufficient trust in the mortgagor, he may not apply for mortgage registration. This mortgage cannot exclude the transferee's ownership. In the eyes of many scholars, registration confrontation can not only fully protect the mortgagee, but also protect the bona fide transferee and maintain the transaction security: the transferee can check the register of the registration authority to know whether the subject matter is mortgaged, thus avoiding the loss of its own interests [4].
On the surface, in the registration confrontation, the mortgagee and assignee of the collateral are indeed "different in legal protection", which seems to be the best choice to coordinate the conflict between them, but this is not the case. Because it acknowledges the resistance of the registered mortgage that the transferee doesn't know, and randomly acknowledges the recourse effect of the mortgage, it has no guarantee for the bona fide transferee: since the transferee trusts the mortgagor's possession of the mortgage, its ownership of the mortgage should not be affected in any way, even in the face of the registered mortgage. That is to say, it is by giving the chattel mortgage registration resistance that the endless contradiction between it and the credibility of chattel possession and the endless conflict between the mortgagee and the assignee are caused. Registration confrontation is only to clarify the causes of contradictions, not an effective prescription to solve contradictions. If we must think that registration confrontation has solved the contradiction, we can only say that the other side of the contradiction has been fundamentally ignored.
Coincidentally, even if the credibility of chattel possession is completely denied, registration confrontation is still not feasible! Because its registration is purely voluntary, some chattel mortgages have been reflected in the register of the registration authority, and some chattel mortgages have not been reflected in the register of the registration authority. As for what is reflected in the register of the registration authority, it is not entirely independent and uncontrollable by the will of the parties. It can be seen that the system design of the registration confrontation system ignores that it is impossible for the buyer to know which mortgages have been registered when the mortgage registration is completely voluntary. In the absence of predictability, if he wants to know, he must register in the register of the authority before each transaction, which is obviously impossible.
(4) Brand and label
The Law on Secured Transactions of Movable Property in Taiwan Province Province, China, is aware that letting the transferee inquire about the register of the registration authority will affect the convenience of the transaction, so it has made a supplementary provision in Article 16, saying that "the registration authority should brand or mark the prominent part of the registered object to show the difference". In this way, the transferee can directly know whether the subject matter has the mortgage right from the appearance, which reduces the pain of inquiry. This kind of brand or label generally plays the role of objection registration in German property law, and denies the presumption of the correctness of image right. After seeing the brand or label, the transferee has the obligation to inquire in the register of the registration authority in order to accurately understand the real situation of the transferred property right and avoid direct conflict with the mortgagee.
Through the above-mentioned clear ways, the transferee of the subject matter has the obligation to inquire and register, so as to avoid the conflict between the transferee and the mortgagee from the source. This is the best way to solve the problem, but there are also many problems: branding means branding a mark that anyone can see at a glance on the subject matter, which may physically destroy the value of the subject matter and the use value of some movable property such as jade, precious stamps, clothes, balls and electrical appliances. Will be reduced or even lost because of the existence of branding; A label is something attached to a theme with paper or similar texture. Although it has little effect on the value of the subject matter itself, it is easy to be torn up by malicious mortgagor because the collateral is occupied by the mortgagor, thus making its prompt effect disappear.
(5) Deny the recourse effect of mortgage.
The biggest irrationality of the recourse effect of chattel mortgage lies in that it runs counter to the principle of public trust and the concept of transaction security: because mortgage does not transfer the possession of collateral, the collateral is still occupied by the mortgagor, and possession is the way to publicize the real right of chattel, and the transferee can naturally trust the fact that the mortgagor directly occupies the collateral and trades with it; However, the recourse effect of mortgage makes the transferee who has obtained the ownership of collateral suffer the danger of recourse effect of mortgage, thus making the ownership of collateral incomplete. In other words, the recourse effect of mortgage makes the transferee's trust in the publicity of real right unable to be protected by law, which is undoubtedly a subversion of the principle of public trust in the publicity of real right of movable property! What's more, after obtaining the collateral, the transferee will transfer the collateral to others at any time to maximize the value of the collateral, and the second transferee will continue to transfer it for the same purpose. If the pursuit of things is carried out, it will inevitably affect multi-party transactions and make the transaction stability of the whole society lose [5].
Through the above analysis, we will find that there should be no recourse effect of mortgage in the field of chattel, but simply denying the recourse effect of chattel mortgage is not a good way to solve conflicts and balance interests, because it completely protects the transferee but sacrifices the mortgage, which is incompatible with the purpose of the guarantee system itself, and the mortgage is of course invalid. In order to make up for this major defect, some scholars suggest limiting the mortgagor's right to dispose of collateral.
(6) Limiting the mortgagor's right to dispose of the mortgaged property
Objectively speaking, the mortgagor transfers the collateral at will, which may increase the difficulty for the mortgagee to recover the collateral, thus increasing the risk for the mortgagee to exercise his rights; At the same time, it is necessary to restrict the mortgagor from transferring the collateral, so as to avoid adversely affecting the exchange value of the collateral and maintain the mortgagee's control over the exchange value of the collateral as much as possible. Furthermore, if the mortgagor transfers the collateral at will, the transferee of the collateral will not be able to exercise his rights against the mortgagee with his ownership, and the transferee of the collateral will be in great danger of encountering unnecessary losses, which may endanger the security and order of the transaction. In order to protect the interests of bona fide transferees, it is also necessary to restrict the transfer of collateral in a specific way [6].
Specifically, this view requires the mortgagor to inform the mortgagee when transferring the collateral, and inform the transferee that the property has been mortgaged, and the transfer should be kept at a reasonable price, otherwise the transfer will be invalid. China and the Supreme People's Court's Opinions on Several Issues Concerning the Implementation of Article 1 15 (Trial) and Article 49 of the Guarantee Law all adopted this view. This idea is too idealistic: although the law limits the mortgagor's right to dispose, the mortgagor can completely ignore these restrictions as punishment. If the mortgagor's punishment is deemed invalid, although the mortgagee can be saved by denying the change of the legal relationship of the mortgaged property, the transferee of the mortgaged property is facing the disaster of extinction-not only can he not obtain the full ownership of the mortgaged property he expects, but even asking the mortgagor to bear other compensation liabilities will be negatively affected by the invalidity of the transfer contract. Therefore, this view and legislation have been criticized almost like encirclement and suppression in the field of civil law in China.
(7) Expand the scope of application of subrogation right of mortgage.
The traditional subrogation in rem is only applicable to the damage or loss of collateral, but the Japanese Civil Code has expanded its scope of application and recognized the subrogation in rem obtained from the transfer of collateral. ○4 By subrogation in things, the interests of the mortgagee will not be harmed, and at the same time, the bona fide transferee can obtain ownership without mortgage burden. For the mortgagor who transfers the collateral, it can not only prevent him from evading the guarantee responsibility, but also ensure him to enter the transaction with the collateral, which is conducive to increasing social wealth in terms of social interests and conforms to the policy orientation of encouraging transactions [7]. From this point of view, it is a good plan to expand the scope of mortgage subrogation. This way of thinking can also design two systems: a. When the collateral is transferred, the mortgagee will fix the right of subrogation, such as depositing or depositing the corresponding currency in a special account, or paying off the principal debt in advance or waiting for the guaranteed principal creditor's right to pay off before exercising the mortgage right of subrogation. B during the existence of the mortgage, the collateral can be transferred at will. even if the mortgagee is unaware of the fact that the collateral is transferred and the transferee has the mortgage right to the transferred object, when the mortgage right meets its realization conditions, the mortgagee will directly exercise the mortgage right to the subrogated object, so that the transferee's ownership will no longer be defective due to the elimination of the mortgage right.
No matter whether the income from the transfer of collateral can be classified as the subrogation right of collateral in nature, the special nature of money makes this subrogation right no different from the general money owned by the mortgagor. Especially when the mortgaged property is squandered after the proceeds from mortgage transfer are mixed with the general money owned by the mortgagor, expanding the scope of subrogation and giving up the recourse effect of the mortgage will certainly protect the assignee, but the mortgagee is in a position of no control, and the prospect of realizing his creditor's rights is bleak.
Even if we don't consider the fact that the theory favors the transferee of collateral rather than the mortgagee in value protection, the two systems designed based on the theory can't achieve the expected purpose. System A stipulates that the premise of collateral transfer income is that the mortgagee knows the fact of collateral transfer at the time of transfer, but the reality is that a large number of transferees don't know the mortgage, so system A is just a castle in the air; ○5 In order to achieve the expected purpose, System B must have the subrogation right when the mortgage right is realized. As mentioned above, if the bloody mortgagor squanders his money, where is the mortgagee's subrogation right?
(8) The right of subrogation and recourse overlap and coexist.
According to this theory, when the mortgage is realized, the mortgagee must first subrogate the price of the collateral to the mortgagor. If it can't be realized or the creditor's rights can't be fully paid off, the mortgagee can exercise the mortgage on the collateral of the bona fide transferee according to the retroactivity of the mortgage [9].
This theory is a brand-new system design, which integrates the recourse effect of mortgage with the system design in the transfer of mortgaged real estate (VII). Unfortunately, due to the lack of attention to the theoretical premise, this system design inherits the defects of the two: the mortgagor squanders the proceeds from the transfer of collateral, the mortgagee has no right of subrogation, and the interests of the mortgagee are not protected; The recourse effect of mortgage is a devastating blow to bona fide transferee. Such defects make this innovative theory worthless.
Third, a bright future: a brand-new theoretical method
At this point, we seem to have reached a dead end. It seems that there is no solution to the conflict of interest caused by the mortgagor transferring the collateral to the mortgagee and the bona fide transferee. The fact is true: chattel mortgage can only be publicized through registration, and the nature of chattel itself determines that it is impossible to implement all compulsory registration of property right change in the field of chattel. The opposition between the registration and publicity of chattel mortgage is incompatible with other chattel property rights, especially the credibility of ownership, which is a "stubborn disease" that is difficult to cure after modern civil law extends mortgage to the chattel field! Faced with this "stubborn disease", some scholars are even disheartened and suggest abolishing the chattel mortgage system [10]. We believe that the existing legislation and theories have failed because they only adopt "adjustment therapy" for "chronic diseases". If we face up to the cause of the disease, we will get rid of the distress of "there is no way to recover the doubts" and feel that "there is another village". Since the conflict between the mortgagee and the assignee is due to the disunity of the publicity method of the movable property right, the movable property right cannot be publicized through possession, can we think from another angle, so that other property rights on the movable property mortgage, especially the ownership, can also be publicized through registration, and the conflict between the two can be eliminated from the source by realizing the unification of the ownership and mortgage publicity on the collateral?
(A) the rationality of existence: chattel mortgage is irrevocable
The property of agricultural society adjusted by traditional civil law is mainly concentrated in real estate, and the value of movable property is relatively small, so it is more appropriate to set mortgage and obtain loans with real estate with greater value; However, in modern society, the value boundary between movable property and real estate is gradually blurred, and the value of important production equipment, large-scale means of transportation, raw materials and other movable property has become the main body of enterprise assets. It would be a pity if these properties were not used for financing!
Chattel security in agricultural society is pledge, and the subject matter is mainly concentrated in gold, silver, jewelry, calligraphy and painting, so the transfer of possession of these chattels has little influence on the production and operation of the guarantor; However, in modern society, production equipment and means of transportation have replaced gold, silver, jewelry, calligraphy and painting, and become the mainstream of high-value movable property, and then transferring possession of them will not only hinder the normal production and operation of the guarantor, but also violate the purpose of obtaining loans to engage in greater business, and will also increase the cost of keeping these movable property by the pledgee.
Therefore, the real estate mortgage and chattel mortgage in traditional civil law are suitable for agricultural society, which can no longer meet the demand of modern economic life for guarantee, so chattel mortgage came into being. Although the appearance of chattel mortgage has broken through the concept of traditional civil law and caused some confusion in theory and legal provisions, the law is oriented to social practice. Since social practice needs chattel mortgage, we can't "turn a blind eye" in law and make no provision.
(b) Stop at the bottom of the barrel: the principle of registration and publicity of security interests in movable property
As emphasized repeatedly in this paper, the conflict of interest between the mortgagee of movable property and the transferee of collateral reflects the contradiction between the opposition of mortgage registration and the credibility of the mortgagor, and its root lies in the destruction of the principle of unification in the choice of the way of property right publicity. Therefore, to solve the problem fundamentally, we must unify the publicity methods of real rights such as mortgage on movable property. In view of the fact that the mortgage does not need to transfer the possession of movable property, it can only be publicized through registration, and its publicity method cannot be unified as possession. Since the publicity method of chattel mortgage cannot be unified as possession, there is obviously only one other way, that is, the publicity method of other real rights on mortgaged chattel can be unified as registration. At the same time, in order to enhance the publicity effect of registration, especially to highlight its credibility, we should eliminate the autonomy and arbitrariness of the parties in registration decision-making and promote the compulsory registration of changes in property rights (including mortgage creation). In this way, chattel mortgage, like real estate mortgage, mortgage and other real rights on collateral are uniformly expressed through registration. When the mortgagor disposes of the collateral, the transferee should and can inquire about the collateral register, and should and can thoroughly understand the ownership of the collateral, so as to conduct the transaction with confidence. The interests of the mortgagee, the transferee of the collateral and even the mortgagor are harmonious, and there will be no conflict between the mortgagee and the transferee at all.
(3) Once and for all: limit the scope of chattel collateral.
In order to eliminate the conflict between the mortgagee of movable property and the transferee of collateral from the source, only registration publicity and compulsory registration can be implemented in the change of real right. However, the implementation of registration and publicity in the field of movable property is contrary to the natural attributes of movable property and the practice of social and economic life. After all, the overall value of movable property is not as big as that of real estate, and the number and frequency of changes in movable property rights are much higher than that of real estate. If all chattels are registered as the way of property rights publicity, it is not only unnecessary and impossible, but also will seriously hinder the transaction of chattels, sacrifice the efficiency of social economy, and finally make the difference between chattels and real estate disappear, and the order of property law will suffer subversive damage. Therefore, this paper suggests: limit the scope of chattel collateral and minimize the adverse consequences of registration and publicity of chattel property rights. On the one hand, the eternal "stubborn disease" since the birth of automatic mortgage has vanished; On the other hand, the order of property law that distinguishes movable property from immovable property in civil law can basically be maintained.
From a practical point of view, the movable property that people use to set mortgage is limited. Movable property of little value is nothing at all. Scholars often cite the example of setting up a mortgage with a senior pencil sharpener of four or five yuan, which is of theoretical significance. In fact, no rational person will set a mortgage for a senior pencil sharpener with four or five dollars, and will not accept the mortgage set with such a pencil sharpener. As for the gold, silver and jewelry calligraphy and painting with great value, people often take it as the object of pledge, and it is very rare to oppose it. From the perspective of comparative law, Japan stipulates that chattels that can be mortgaged include motor vehicles, airplanes, ships, engines, motors, prime movers, trucks, threshers, incubators, pumps, huskers, cattle and horses and other agricultural chattels and construction machinery. Taiwan Province Province, China is machinery, equipment, tools, raw materials, semi-finished products, vehicles, agricultural, forestry, fishery and animal husbandry products, livestock, power boats with a gross tonnage of less than 20 tons or non-power boats with a gross tonnage of less than 50 tons; In the practice in Taiwan Province, China, chattel collateral is mainly concentrated on large machinery and equipment [1 1]. Most of the above chattels can be called "quasi-immovable property". The author thinks that the chattels allowed to be mortgaged in China's Guarantee Law should also be limited to "quasi-immovable property", and the method of registration and publicity and the principle of compulsory registration of property right change should be adopted on these "quasi-immovable property". In fact, China's current Maritime Law and Civil Aviation Law both stipulate the registration of quasi-immovable property such as ships and airplanes, which paves the way for the general implementation of the principle of publicity in the registration of quasi-immovable property and the compulsory registration of property rights changes in the future.