论重复抵押

About Repeated Mortagage

本文认为重复抵押是抵押行为的重复 ,可导致却不等同于抵押权的重复 ,也不是抵押物价值的重复 ;重复抵押的效力取决于各次抵押行为是否有效和有效抵押是否超值 ;并对重复抵押中抵押权实现的几种特殊情况加以探讨 ,指出关于抵押权顺位立法隐含着有限制的顺位升进主义。

The author holds the point of view that the repeated mortgage is the repetition of mortgage and it may induce, but it is not equal to, the repetition of mortgage rights and the mortgaged property value. The excessive mortgage on a property defined in The Law of Guarantee is fit for our national conditions and makes a breakthrough in the traditional civil law. The validity of the repeated mortgage depends on not only whether each mortgage behavior is valid but also whether a valid mortgage exceeds the value of a mortgaged property. In addition, the author comes up with the several special conditions of the repeated mortgage, under which the mortgage can realize his or her mortgage right. Finally, the author points out that the order of mortgage rights defined in legislation hints the limited promotism in order.