抵押权效力若干问题研究

Research on Some Mortgage Validity Issues

依照意思自治原则,在不影响抵押权以及其他担保物权法定目的实现且不损害第三人利益的前提下,当事人就法律未明文禁止的相关事项做出的特别约定,一般均应认定为有效,其中包括当事人有关移转抵押物占有的约定,以及债务到期后抵押权存续期间的约定;在抵押人为第三人时,未经登记的动产抵押权主要具备债权效力,且不得适用善意取得;"抵押权效力及于抵押物新增从物"的各种主张,完全不能成立;在"先押后租"的情形,如无正当理由,抵押权人不得否定租赁权的效力;在共同抵押人均为第三人时,无约定或者约定不明的,债权人有权自由选择先后或者同时行使全部抵押权,承担担保责任的抵押人有权向债务人追偿,但无权向其他抵押人追偿。

According to the principle of idea autonomy, and under the premise that the mortgage and other real rights for security shall not be affected to realize its legal purpose, and the interests of a third person shall not be damaged, the special agreement the parties make as to the related items, which was not clearly prohibited by law, shall be deemed to be valid, generally including the agreement to transfer the mortgaged property, and the agreement of the duration of mortgage after the debt was due ;when the mortgagor is a third person, the chattel mortgage without registration mainly has the effect of creditor＇ s rights, and shall not apply the acquisition in good faith;claims such as ＂the validity of the mortgaged property and the new accessories from it＂ shall be completely unable to establish;in the case of ＂mortgage before rent＂, if without justifiable reasons, the mort- gagee shall not deny the validity of the lease;when the common mortgagees are all the third parties, if without contract or the agreement is not clear, the creditor shall have the right to choose the priority or exercise all mortgages at the same time, and the mortgagor who bears the guarantee responsibility has the right to recourse against the debtor, but shall not be entitled to recourse against any other mortgagor.