动产抵押公示方式选择的思考

Rethinking the Means of Public Notice for Personal Property Mortgage

动产抵押担保是对传统抵押只能设定在不动产上理论的突破 ,其固有的缺陷在于因不移转占有而欠缺物权变动的公示方式。在法律技术上应采用“书面成立——登记对抗主义”的方式解决这一问题 ;登记对抗的效力在于动产抵押担保 ,非经登记 ,不得对抗善意第三人 ,已经登记 ,即可对抗善意第三人 ;在登记效力的时间限制上 ,其期间既非时效期间 ,也非除斥期间 ,而是对抗期间 ;在登记的空间效力上 ,应实行“地方统一登记 ,全国微机联网 ,效力及于全国”;登记具有对抗力 。

The tradition that only real property can be the object of mortgage has been brought through by personal property mortgage. But the rub is that there is no means of public notice for the change of property right, because the mortgage do not possess the personal property which has been mortgaged. The solution may be that the mortgage relation must be established by written documents and that the fact that the personal property has been mortgaged must be registered. The validity of registration resistance is that the personal property mortgage can not resist the third party of good faith without registration and vice versa. The span of the validity of registration is not limitation and not the period that rights exist. It is the span of resistance. Local authorities administer the registration. The registration data should be investigated through Internet. The space validity of the registration should be all over the whole country. The registration only has the resistance validity and has no power of public confidence.