抵押物转让后抵押权的追及效力浅析

Tentative analysis of mortgage chase and effectiveness after the transfer of mortgaged property

当今担保物权的发展趋势促使非转移占有担保成为主流,如何保证抵押物转让后抵押权的追及效力,最大程度上平衡抵押权人、抵押人和受让人三者之间的利益成为重要命题。在抵押权追及效力问题上,我国物权法等已有相关规定,但是不够全面,亦不尽合理。以比较分析法为指导,文中对我国及其他国家或地区相关制度进行比较后认为,对于国外在区别对待抵押物、衔接善意取得制度、承认抵押物转让权等方面所作的顺应趋势的制度设计,我国物权立法不妨予以学习借鉴以期更加完善。

Nowadays, the development of real rights for security makes the warranty of non - transferring possession the main trend. How to guarantee the efficacy of claim of right to mortgage after the mortgage is transferred so as to balance the interests among mortgagee, mortgagor and assignee has become an important issue. There have been some relevant regulations on the issue of the efficacy of claim of right to mortgage in China＇ s property law. However, they are not comprehensive enough and unreasonable as well. Based on the method of comparative analysis, this paper, after comparing the relative systems between China and other countries or regions, argues that the legislation of the property right in China might as well learn from the system design of foreign countries in order to be more perfect, in the aspects of holding different attitudes to mortgages, connecting bona fide acquisition system and admitting the right of mortgage transfer.