A Study of the Controversy in Good Faith Acquisition of Mortgage
RAN Keping
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History+
Published
2018-11-15
Issue Date
2018-11-08
Abstract
The good faith acquisition of the real estate mortgage and the good faith acquisition of the chattel mortgage can both be proved. The constituent elements of the former include: unauthorized disposal by the debtor or a third party, good faith of the creditor, and the completion of mortgage registration. And in this case, the creditor need not to “pay a reasonable price or perform the main obligation.” The latter only refers to the chattel mortgage generated through the setting and the case of being transferred by the main creditor's right is not applicable. Being registered shall be as a constituent element of the chattel mortgage, and the possession status shall be limited to direct possession and exclude indirect possession. Impersonation of real estate mortgage should be applied to unauthorized agency or even apparent agency on certain conditions, instead of good faith acquisition. For the borrow-name registration, when one party registers his property in the other party's name as title-holder, and this so-called holder mortgages the real property to the creditor, it can be applied to the good faith of the real estate mortgage.