从《民法典》新规谈抵押财产转让制度

Discussion on the Transfer of Hypothecated Assets Based on New Regulations of The Civil Code

《民法典》第四百零六条规定,抵押期间,抵押人可转让抵押财产。这一新规改变了以往担保物权对所有权变更的限制,增加了抵押财产的市场流通性,降低了设定抵押的财产的处分成本。新规的实行对于房地产交易量的提升起到一定积极作用,也让中小企业能够通过转让抵押财产增加流动资金,放大融资杠杆。但同时新规削弱了抵押这一传统强担保方式的效力,可能造成抵押权人主张抵押权利的难度和风险加大,给抵押权人造成损害。因而对于银行等金融机构来说需相应调整相关合同条款及贷款政策,以规避由抵押财产转让造成的风险。

Article 406 of The Civil Code provides that during the mortgage period, the mortgagor may transfer the mortgaged property. This new regulation changes the previous restrictions on the change of ownership of the secured property, increases the market liquidity of the mortgaged property, and reduces the disposal cost of the mortgaged property. The implementation of the new regulations has played a positive role in the improvement of real estate transaction volume, and also enables small and medium-sized enterprises to increase liquidity and amplify financing leverage by transferring mortgaged property. But at the same time, the new regulation weakens the effectiveness of mortgage, which is a traditional strong guarantee method, which may increase the difficulty and risk of mortgagees to claim mortgage rights, and cause damage to mortgagees. Therefore, for banks and other financial institutions, it is necessary to adjust the relevant contract terms and loan policies to avoid the risks caused by the transfer of mortgaged property.