限制抵押财产转让约定之效力论OA北大核心CHSSCDCSSCI

Article 43 of the Judicial Interpretation of the Security System in the Civil Code grants the ability to register agreements restricting the transfer of mortgaged property and stipulates the legal effects of registered and unregistered restrictive agreements.From the perspective of economic analysis,this rule design may lead to increased institutional costs and reduced overall benefits,undermining the significance of the reforms to the rules on the transfer of mortgaged property in the Civil Code.However,given that the judicial interpretation has already made such provisions,it should be reconciled from the standpoint of legal dogmatics by maintaining the original intention of the Civil Code's reform of the system for transferring mortgaged property through restrictive interpretation.Unregistered restrictive transfer agreements only have contractual effect.The proviso rule in Article 43,Paragraph 1 of the Judicial Interpretation of the Security System in the Civil Code lacks sufficient reasonableness,and its scope of application should be strictly limited.That is,when the transferred mortgaged property has been registered,only when the transferee knows of the restrictive transfer agreement and the transfer may harm the mortgage rights can its property effect be denied.The effect of the registered restrictive transfer agreement stipulated in Paragraph 2 of the article differs from the effect of advance notice registration.The registration authority should process the registration of changes in property rights for the transferee of the mortgaged property."the transfer produces no effect of real right"should exclude the situation of ordinary chattel mortgage and only only has relative effect on the mortgagee.