论最高额抵押制度的完善

On the Improvement of the Mortgage System of Maximum Amount

最高额抵押权是一种特殊的抵押权,具有积极的价值功能。但最高额抵押亦有其弊端,如设定巨额的最高额抵押,致抵押物价值不能充分发挥;或债权人不与债务人正常交易,使债务人经济活动自由受限,因主合同备案存在瑕疵最高额抵押权实现不了等。完善我国最高额抵押立法应明确规定最高额抵押确定请求权制度、减额请求权制度和消灭请求权制度;以立法形式规定综合授信合同及其他带有约定决算期的框架性合同可以作为最高额抵押合同的主合同进行登记备案。

The maximum -amount mortgage is a special mortgage right of positive value functions. However,it has such drawbacks as setring huge amount of maximal mortgage which results in incomplete play of mortgage value,or the abnormal transaction between the creditor and debtor which leads to restricted economic freedom of debtor as well as maximum mortgage not being achieved due to defects in contract records,and so on. To perfect our country＇s legislation of maximum mortgage,the ascertainment system of claim right, the decrease system of claim right as well as the elimination system of claim right should be specified. In addition, integrated credit contracts and other framework contracts with contractual final accounting time should be put on record as the main contract of maximum mortgage stipulated by legislation.