Legal subjectivity:
1. The difference between mortgage rights and pledge rights
1. First, the requirements for establishment and maintenance are different. In addition to signing a mortgage contract, the establishment of mortgage rights is in principle conditioned on mortgage registration. The establishment of a mortgage right is not conditional on the delivery of the collateral. The maintenance of mortgage rights is not conditional on the mortgagee taking possession of the mortgaged property. The condition for maintaining a registered mortgage is the existence of the mortgage registration record. Canceling the registration means that the registered mortgage no longer exists. The establishment and maintenance of pledge rights are different from mortgage rights. The establishment of a pledge right requires, in addition to signing a pledge contract, that the pledger must hand over the pledged property to the creditor for possession in accordance with the pledge contract. If a pledge contract is merely concluded without transferring the possession of the pledged property to the creditor in accordance with the provisions of the pledge contract, the right of pledge cannot be established. The continuation of possession of the pledged ginseng is also a condition for maintaining the pledge. The loss of possession of the pledge by the pledgee will cause the elimination of the pledge.
2. Second, the subject matter is different. The subject matter of the mortgage is real estate, usufruct rights of real estate and movable property; the subject matter of pledge is movable property and other property rights except usufruct rights of real estate, including creditor's rights, equity, intellectual property rights and other property rights. The subject matter of the two types of security rights, mortgage right and pledge right, overlap in the movable property. Whether a security right established on movable property is a mortgage or a pledge depends on whether the creditor possesses the subject matter.
3. The difference between mortgage right and pledge right lies in whether the possession of the secured property is transferred. The mortgage does not transfer the possession and management form of the pledged property, and the mortgagor is still responsible for the custody of the pledged property; the pledge changes the possession and custody form of the pledged property, and the pledgee is responsible for the custody of the pledged property.
2. The most common points between pledge rights and mortgage rights
1. Mortgage rights and pledge rights are both security rights.
2. Mortgage and pledge should be signed in writing in a mortgage contract or pledge contract.
3. The contract shall not stipulate that when the debt performance period expires and the mortgage or pledge has not been paid off, the ownership of the mortgage or pledge will be transferred to the mortgagee or pledgee.
4. Mortgage contracts and pledge contracts have provisions for registration with relevant departments.
5. Both the mortgaged property and the pledged property must be registered, and the mortgage contract and pledge contract will take effect from the date of registration.
6. Mortgage rights and pledge rights exist at the same time as their respective guaranteed claims and are extinguished at the same time.
7. If the mortgage right is extinguished due to the loss of the mortgaged property, the compensation received due to the loss shall be regarded as the mortgaged property; the pledge right is extinguished due to the loss of the pledged property, and the compensation received due to the loss shall be regarded as the pledged property.
8. The scope of mortgage guarantee includes the main claim and interest, liquidated damages, damages and the cost of realizing the mortgage right; the scope of pledge guarantee includes the main claim and interest, liquidated damages, damages, pledge The cost of keeping the property and the cost of realizing the pledge.
9. The excess of the price of the pledged property over the creditor's rights shall belong to the mortgagor, and the shortfall shall be made up by the debtor; the excess of the price of the pledged property over the creditor's rights shall belong to the pledgor. All deficiencies shall be made up by the debtor.
10. Regardless of mortgage or pledge, when the debtor fails to perform its debts, the creditor has the priority to receive payment from the discount, auction, or sale price of the mortgaged property or pledged property.
11. When a mortgagor transfers a registered mortgage, it shall notify the mortgagee and inform the transferee that the transferred property has been mortgaged. The mortgagor fails to notify the mortgagee or the transferee. , the transfer is invalid; the shares may not be transferred after they are pledged, except with the agreement between the pledger and the pledgee. After the property rights in trademark rights, patent rights, and copyrights are pledged, the pledger shall not transfer them, except with the agreement of the pledger and the pledgee, and the proceeds from the transfer shall pay off the creditor's rights in advance.
12. The collateral does not need to be transferred and possessed; if the stock is pledged as a pledge, due to the electronic nature of the stock market, the stock does not need to be transferred and possessed.
13. The mortgagor can use the state-owned land use rights, building use rights and other rights that he has the right to dispose of according to law to set up a mortgage; the pledger can use bills of exchange, checks, promissory notes, bonds, etc.
3. The effectiveness of mortgage rights and pledge rights
According to the general principle of property rights, property rights established earlier are better than property rights established later, so on the same property If the pledge is established first, in principle, the repayment shall be in the order of pledge first and mortgage right later.
However, the time for the registration and announcement of the mortgage right is certain, and the time for setting up the pledge right is difficult to determine. The guarantor may collude maliciously with a third party after setting up the mortgage, and fight against the mortgage right on the grounds that the pledge right was set first. person exercises the right to mortgage. However, there must be certain standards to infer the bad faith of the guarantor. You can refer to Article 49 of the Guarantee Law on the obligation to notify when the mortgage is transferred, which stipulates that if there is a pledge encumbrance on the mortgage when a chattel is mortgaged, the guarantor must notify the creditor. obligations, otherwise it can be presumed that it is malicious and violates the principle of good faith, and the mortgagee should be compensated for the losses suffered thereby. The law is objective:
Article 425 of the Civil Code: In order to guarantee the performance of a debt, if the debtor or a third party pledges his movables to the creditor for possession, the debtor fails to perform the due debt or the party When the pledge is realized as agreed, the creditor has the right to receive priority payment for the movable property. The debtor or third party specified in the preceding paragraph shall be the pledger, the creditor shall be the pledgee, and the movable property delivered shall be the pledged property.