论让与担保在担保体系中的独立性地位——兼析《民间借贷司法解释》第二十四条.pdfVIP

Abstract Two contradictory judgment of the Supreme Court on the mortgage leads to the problem consciousness: mortgage has position in the Guarantee Law? The page has redefined the concept of mortgage. Does mortgage belong to guarantee or trade? Then the page discussed, since the mortgage is guarantee, which kinds of typical guarantee it has belong to? this paper will compare with a variety of typical guarantee, finding that the mortgage does not belong to any one typical guarantee; since the mortgage do not belong to the typical guarantee, mortgage should belong to atypical guarantee, and compared with various atypical guarantee, mortgage and other atypical guarantee are different. This paper draws a conclusion: the mortgage is guarantee not trade, so the system of the Guarantee Law should have position for the mortgage. The First part of this article tells two decision conflict cases of the Supreme Courts, case of Zhu Junfang and case of Guangxi Jiamei rule respectively on the validity of the mortgage, and which leads to the problem of mortgage in Guarantee Law system :does mortgage has independent position? In the Second part, compared between mortgage with conditional sales contracts, exploring the autonomy of the parties, it finds that mortgage is guarantee but not a conditional sales contracts; The Third part of the gage will compare the mortgage and typical guarantee, founds it not belong to the system of the typical guarantee, so the mortgage is not a typical guarantee but atypical guarantee. It does not apply to the fl