1, different types of collateral
Collateral and pledge must be the property that the mortgagor or pledger has the right to dispose of, which is allowed to be transferred by law and easy to manage and execute, but there are differences in specific types and scope. Collateral is generally real estate, including houses owned by the mortgagor and other fixed objects on the ground; State-owned land use rights, houses and property that the mortgagor has the right to dispose of according to law can be used as collateral, but few people use these movable property as collateral in practice. Pledged goods are generally movable property, which is light, simple, easy to move in space and easy to keep. Among them, the subject matter of pledge of rights includes legally transferable bills of exchange, promissory notes, bonds, certificates of deposit, warehouse receipts, bills of lading, shares and stocks, as well as legally transferable property rights in trademarks, patents and copyrights.
2. Whether the transfer of ownership is different.
In mortgage guarantee, the possession of the mortgaged property is not transferred, and the owner, that is, the mortgagor, only provides the mortgagee with the exchange value of the property. In this way, the mortgagor can make full use of the use value of the collateral, gain income, pay off the creditor's rights, and ensure that the creditor can realize the creditor's rights as soon as possible, and at the same time, the creditor has the priority to be compensated. Therefore, mortgage guarantee is an ideal form of guarantee, which is beneficial to both debtors and creditors. Pledge is a guarantee way to transfer the possession of pledged property. Once the pledge contract is established, the pledgor should give the pledged property to the pledgee for possession, and the pledgor only retains the ownership of the pledged property, which is the most obvious feature of pledge. Because the pledgee has the obligation to keep the pledged property properly during the possession period, it is not allowed to use it, which leads to the use value of the pledged property not being utilized and brought into play, which is the defect of the pledge. However, from the perspective of protecting the legitimate rights and interests of the parties and the third party, the law has to sacrifice the effectiveness of pledge to a certain extent.
3. The way of publicity is different from the effective time of the contract.
In mortgage guarantee, considering that the possession of collateral will not be transferred, China's law has established a mortgage registration system. Among them, buildings such as factories of township (town) and village enterprises are regulated; Forest trees; Aircraft, ships and vehicles: equipment and other movable property of enterprises. If there are other property mortgages, the contract can be established as long as both parties agree, and it will take effect from the date of signing. In pledge, because the pledged property itself has the function of publicity, there is generally no need for special registration, but there are exceptions, that is, if the property right or intellectual property right in the stock is pledged, it should be registered with the corresponding management department. The effective time of the pledge contract shall be stipulated separately: in the pledge of movable property, the contract shall take effect when the pledged property is handed over; In the pledge of rights, if creditor's rights such as bills of exchange are pledged, the contract shall take effect from the date when the certificate of rights is delivered to the pledgee; If the shares are pledged, this contract shall come into effect as of the date when the shares are pledged and recorded in the register of shareholders; Where stock property rights or intellectual property rights are pledged, this contract shall take effect from the date of pledge registration.
4. Whether a security right can be repeatedly created is different.
In mortgage guarantee, more than two mortgages can be set for the same collateral. In pledge guarantee, pledge cannot be established repeatedly, because the delivery of pledge and the transfer of possession are important elements for the effective establishment of the contract.
Guarantee mainly has the following five characteristics:
(1) Guarantees subordination. Reflected in: the guarantee contract is based on the effective existence of the main contract; The scope and intensity of the guarantee are subordinate to the main debt and shall not be greater than or stronger than the main debt; The secured creditor's rights are transferred with the transfer of the principal creditor's rights; The guarantor's guarantee debt exists during the guarantee period; The secured debt will disappear with the elimination of the principal debt.
(2) ensure independence. The secured debt is not a part of the main debt, but a separate debt independent of the main debt. This feature of guarantee is also an important symbol that guarantee is different from debt commitment.
(3) guarantee free. The guarantee contract is a free contract, and the guarantor's guarantee debt is not at the expense of obtaining certain property rights from the creditor, and the creditor enjoys the guarantee creditor's right to the guarantor without paying any price.
(4) Guarantees are complementary. Guaranteed debt is the supplement and strengthening of the principal debt, and the performance of guarantee is mainly that the guarantor will be responsible for the performance of the guaranteed debt only when the principal debtor fails to perform the debt.
(5) ensure that it is one-handed. Ensure that the contract is a single service. There is no obligation between the two parties to treat each other for payment, so there is no question of the order of performance of the obligations.
The characteristics of mortgage are as follows:
1, mortgage is a security interest created on the specific property of the debtor or the third party;
2. Mortgage is an agreed security interest, not a legal security interest;
3. Mortgage is the real right that does not transfer the possession of the subject matter;
4. The publicity of mortgage right is mainly registration;
5. The establishment and existence of mortgage only need to be registered, and there is no need to transfer the possession of the subject matter;
6. The content of mortgage is the right to dispose of different prices and the right of priority compensation.
Characteristics of pledge: the debtor or the third party is the pledger and the creditor is the pledgee; Pledge does not transfer the ownership of property, only the ownership of property; Pledge has the characteristics of subordination, priority and subrogation.
Legal basis:
People's Republic of China (PRC) Civil Code
Article 394 Where the debtor or a third party mortgages the property to the creditor to guarantee the performance of the debt without transferring the property, and the debtor fails to perform the due debt or realize the mortgage right according to the agreement of the parties, the creditor has the right to be paid in priority for the property.
The debtor or the third party specified in the preceding paragraph is the mortgagor, the creditor is the mortgagee, and the property that provides guarantee is the mortgaged property.
Article 425 Where the debtor or a third party transfers his movable property to the creditor to guarantee the performance of the debt, and the debtor fails to perform the due debt or the creditor has the right to be paid in priority for the movable property.
The debtor or the third party specified in the preceding paragraph is the pledger, the creditor is the pledgee, and the delivered movable property is the pledged property.