Article 400
To create a mortgage, the parties shall enter into a mortgage contract in writing.
A mortgage contract generally contains the following terms:
(1) the type and amount of the secured claim;
(2) the term during which the debtor shall perform obligations;
(3) such particulars as the name and quantity of the mortgaged property; and
(4) the scope of the security interest covered.
Article 401
Where, prior to the due date of performance of an obligation, the mortgagee reaches an agreement with the mortgagor under which the mortgaged property belongs to the creditor in the event that the debtor fails to perform the obligation due, the mortgagee, regardless, may only have priority to be paid from the mortgaged property in accordance with law.
Article 402
To create a mortgage on the property as specified in Subparagraphs (1) through(3) of the first paragraph of Article 395, or on the building under construction as specified in Subparagraph (5) of the first paragraph of this Code, registration shall be made for the mortgage. The mortgage shall be created upon registration.
Article 403
A mortgage on movable property shall be created at the time when the mortgage contract enters into effect; without registration, such a mortgage may not be asserted against a bona fide third person.
Article 404
A mortgage on movable property may not be asserted against a buyer who has paid a reasonable purchase price and acquired the mortgaged property in the ordinary course of business.
Article 405
Where a mortgaged property has been let to and possessed by another person prior to creation of the mortgage, the lease relationship shall not be affected by the mortgage.
Article 406
A mortgagor may transfer the mortgaged property to another person during the term of the mortgage unless otherwise agreed by the parties. The transfer of the mortgaged property shall not affect the mortgage.
A mortgagor who transfers the mortgaged property to another person shall notify the mortgagee in a timely manner. The mortgagee may request the mortgagor to apply the proceeds of the transfer to pay off the obligation before it is due, or place such proceeds in escrow where he may establish that the transfer of the mortgaged property may impair his right to the mortgage. The portion of the proceeds obtained from the transfer in excess of the amount of the obligation owed shall belong to the mortgagor, while any deficiency shall be satisfied by the debtor.
民法典标准英腔女声朗读Article400~429
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Article 423
The claims of the mortgagee are ascertained under one of the following circumstances:
(1) where the agreed period of time for the claims to be ascertained expires;
(2) where there is no agreement on the period of time for the claims to be ascertained or the agreement is unclear , and the mortgagee or the mortgagor requests for ascertainment of the claims after the lapse of two years from the date of the creation of the mortgage;
(3) where it is impossible for a new claim to arise;
(4) where the mortgagee knows or should have known that the mortgaged property has been seized or detained;
(5) where the debtor or the mortgagor is declared bankrupt or dissolved; or
(6) any other circumstance under which the claims are to be ascertained as provided by law.
Article 424
In addition to the provisions of this Section, the relevant provisions of Section 1of this Chapter shall be applied to the maximum mortgage for floating claims.
Chapter XVIII Pledge
Section 1 Pledge in Movable Property
Article 425
Where a debtor or a third person pledges his movable property to the creditor for possession in order to secure the performance of an obligation, if the debtor fails to perform the obligation due or an event upon the occurrence of which the pledge is to be enforced as agreed upon by the parties occurs, the creditor has priority to be paid from the movable property.
The debtor or third person as specified in the preceding paragraph is the pledgor, the creditor is the pledgee, and the movable property delivered is the pledged property .
Article 426
Movable property may not be pledged where its transfer is prohibited by laws or administrative regulations.
The claims of the mortgagee are ascertained under one of the following circumstances:
(1) where the agreed period of time for the claims to be ascertained expires;
(2) where there is no agreement on the period of time for the claims to be ascertained or the agreement is unclear , and the mortgagee or the mortgagor requests for ascertainment of the claims after the lapse of two years from the date of the creation of the mortgage;
(3) where it is impossible for a new claim to arise;
(4) where the mortgagee knows or should have known that the mortgaged property has been seized or detained;
(5) where the debtor or the mortgagor is declared bankrupt or dissolved; or
(6) any other circumstance under which the claims are to be ascertained as provided by law.
Article 424
In addition to the provisions of this Section, the relevant provisions of Section 1of this Chapter shall be applied to the maximum mortgage for floating claims.
Chapter XVIII Pledge
Section 1 Pledge in Movable Property
Article 425
Where a debtor or a third person pledges his movable property to the creditor for possession in order to secure the performance of an obligation, if the debtor fails to perform the obligation due or an event upon the occurrence of which the pledge is to be enforced as agreed upon by the parties occurs, the creditor has priority to be paid from the movable property.
The debtor or third person as specified in the preceding paragraph is the pledgor, the creditor is the pledgee, and the movable property delivered is the pledged property .
Article 426
Movable property may not be pledged where its transfer is prohibited by laws or administrative regulations.
Section 2
Maximum Mortgage for Floating Claims
Article 420
Where a debtor or a third person provides a collateral for future claims that will arise consecutively within a certain period of time to secure performance of the obligations, if the debtor fails to perform an obligation due or an event upon which such a mortgage is to be enforced as agreed upon by the parties occurs, the mortgagee has the priority to be paid from the mortgaged property up to the maximum amount of his claim.
A claim that exists prior to the creation of the maximum mortgage for floating claims may, upon consent of the parties, be included in the claims secured by such a mortgage.
Article 421
Before the claims secured by the maximum mortgage for floating claims are ascertained, where part of the claims is transferred, the mortgage may not be transferred unless otherwise agreed by the parties.
Article 422
Before the claims secured by a maximum mortgage for floating claims are ascertained, the mortgagee and the mortgagor may change by agreement the period of time for the ascertainment of the claims, the scope of the claims, and the maximum amount of the claims, provided that such changes may not adversely affect other mortgagees.
Maximum Mortgage for Floating Claims
Article 420
Where a debtor or a third person provides a collateral for future claims that will arise consecutively within a certain period of time to secure performance of the obligations, if the debtor fails to perform an obligation due or an event upon which such a mortgage is to be enforced as agreed upon by the parties occurs, the mortgagee has the priority to be paid from the mortgaged property up to the maximum amount of his claim.
A claim that exists prior to the creation of the maximum mortgage for floating claims may, upon consent of the parties, be included in the claims secured by such a mortgage.
Article 421
Before the claims secured by the maximum mortgage for floating claims are ascertained, where part of the claims is transferred, the mortgage may not be transferred unless otherwise agreed by the parties.
Article 422
Before the claims secured by a maximum mortgage for floating claims are ascertained, the mortgagee and the mortgagor may change by agreement the period of time for the ascertainment of the claims, the scope of the claims, and the maximum amount of the claims, provided that such changes may not adversely affect other mortgagees.
Article 416
Where a principal claim secured by a mortgage on movable property is the purchase price of the mortgaged property, and registration for the mortgage is made within 10 days after delivery of the property, the mortgagee has the priority to be paid over the other persons, other than a lienholder, who have security interests thereon in relation to the purchaser of the mortgaged property.
Article 417
Where a right to use a lot of land for construction purposes is mortgaged, any newly added buildings on the lot of land are not part of the mortgaged property. Upon enforcement of the mortgage on the right to use the lot of land for construction purposes, the newly added buildings on such land shall be disposed of concomitantly with the right to use such land for construction purposes, provided that the mortgagee has no priority to be paid from the proceeds obtained from disposition of the newly added buildings.
Article 418
Where a right to use a lot of land owned by a collective is mortgaged in accordance with law, the nature of the ownership and the purpose of use of the land may not be altered without going through statutory procedures after the mortgage is enforced.
Article 419
A mortgagee shall exercise his right to mortgage within the limitation period for claiming against the principal obligation; otherwise no protection may be provided by the people’s court.
Where a principal claim secured by a mortgage on movable property is the purchase price of the mortgaged property, and registration for the mortgage is made within 10 days after delivery of the property, the mortgagee has the priority to be paid over the other persons, other than a lienholder, who have security interests thereon in relation to the purchaser of the mortgaged property.
Article 417
Where a right to use a lot of land for construction purposes is mortgaged, any newly added buildings on the lot of land are not part of the mortgaged property. Upon enforcement of the mortgage on the right to use the lot of land for construction purposes, the newly added buildings on such land shall be disposed of concomitantly with the right to use such land for construction purposes, provided that the mortgagee has no priority to be paid from the proceeds obtained from disposition of the newly added buildings.
Article 418
Where a right to use a lot of land owned by a collective is mortgaged in accordance with law, the nature of the ownership and the purpose of use of the land may not be altered without going through statutory procedures after the mortgage is enforced.
Article 419
A mortgagee shall exercise his right to mortgage within the limitation period for claiming against the principal obligation; otherwise no protection may be provided by the people’s court.
Article 412
Where a debtor fails to perform his obligation due or an event upon the occurrence of which the mortgage is to be enforced as agreed upon by the parties occurs, resulting in the seizure of the mortgaged property by the people’s court in accordance with law, the mortgagee is entitled to collect the natural fruits or legal proceeds accrued from the mortgaged property as of the date of the seizure, unless the mortgagee fails to notify the person who is obligated to pay off the legal proceeds.
The fruits or proceeds as specified in the preceding paragraph shall first be applied to offset the expenses of collecting them.
Article 413
Where the appraised value of a mortgaged property or the proceeds obtained from auction or sale of it is in excess of the amount of the obligation owed, the excessive portion shall belong to the mortgagor, while any deficiency shall be satisfied by the debtor.
Article 414
Where a property is mortgaged to two or more creditors, the proceeds obtained from auction or sale of the mortgaged property shall be applied in accordance with the following provisions:
(1) where the mortgages have all been registered, the order of payment is based on the priority in time of registration;
(2) a registered mortgage has priority over an unregistered mortgage to be paid; and
(3) where none of the mortgages are registered, payment shall be made on a pro rata basis against the claims.
The preceding paragraph shall be applied mutatis mutandis with regard to the priority order of payment for other security interests that are registrable.
Article 415
Where both a mortgage and a pledge are created on the same property, the priority order of payment with the proceeds obtained from auction or sale of the property shall be based on the priority in time of registration and delivery of the property.
Where a debtor fails to perform his obligation due or an event upon the occurrence of which the mortgage is to be enforced as agreed upon by the parties occurs, resulting in the seizure of the mortgaged property by the people’s court in accordance with law, the mortgagee is entitled to collect the natural fruits or legal proceeds accrued from the mortgaged property as of the date of the seizure, unless the mortgagee fails to notify the person who is obligated to pay off the legal proceeds.
The fruits or proceeds as specified in the preceding paragraph shall first be applied to offset the expenses of collecting them.
Article 413
Where the appraised value of a mortgaged property or the proceeds obtained from auction or sale of it is in excess of the amount of the obligation owed, the excessive portion shall belong to the mortgagor, while any deficiency shall be satisfied by the debtor.
Article 414
Where a property is mortgaged to two or more creditors, the proceeds obtained from auction or sale of the mortgaged property shall be applied in accordance with the following provisions:
(1) where the mortgages have all been registered, the order of payment is based on the priority in time of registration;
(2) a registered mortgage has priority over an unregistered mortgage to be paid; and
(3) where none of the mortgages are registered, payment shall be made on a pro rata basis against the claims.
The preceding paragraph shall be applied mutatis mutandis with regard to the priority order of payment for other security interests that are registrable.
Article 415
Where both a mortgage and a pledge are created on the same property, the priority order of payment with the proceeds obtained from auction or sale of the property shall be based on the priority in time of registration and delivery of the property.
Article 410
Where a debtor fails to perform his obligation due or an event upon which a mortgage is to be enforced as agreed upon by the parties occurs, the mortgagee may, upon agreement with the mortgagor, have the priority right to appraise and accept the mortgaged property, or apply the proceeds obtained from auction or sale of the mortgaged property to satisfy his claim against the mortgagor. Where the agreement is detrimental to the interests of other creditors, the other creditors may request the people’s court to rescind the agreement.
Where a mortgagee and a mortgagor fail to reach an agreement on the methods of enforcing the mortgage, the mortgagee may request the people’s court to have the mortgaged property sold at auction or in a sale.
The appraisal or sale of the mortgaged property shall be based on the market price thereof.
Article 411
Where a mortgage is created in accordance with the provisions of Article 396 of this Code, the mortgaged property shall be ascertained at the time when one of the following circumstances occurs:
(1) the claim is not satisfied upon expiration of the term of performance of the obligation;
(2) the mortgagor is declared bankrupt or dissolved;
(3) an event upon which the mortgage is to be enforced as agreed upon by the parties occurs; or
(4) any other circumstance that seriously affects the enforcement of the claim.
Where a debtor fails to perform his obligation due or an event upon which a mortgage is to be enforced as agreed upon by the parties occurs, the mortgagee may, upon agreement with the mortgagor, have the priority right to appraise and accept the mortgaged property, or apply the proceeds obtained from auction or sale of the mortgaged property to satisfy his claim against the mortgagor. Where the agreement is detrimental to the interests of other creditors, the other creditors may request the people’s court to rescind the agreement.
Where a mortgagee and a mortgagor fail to reach an agreement on the methods of enforcing the mortgage, the mortgagee may request the people’s court to have the mortgaged property sold at auction or in a sale.
The appraisal or sale of the mortgaged property shall be based on the market price thereof.
Article 411
Where a mortgage is created in accordance with the provisions of Article 396 of this Code, the mortgaged property shall be ascertained at the time when one of the following circumstances occurs:
(1) the claim is not satisfied upon expiration of the term of performance of the obligation;
(2) the mortgagor is declared bankrupt or dissolved;
(3) an event upon which the mortgage is to be enforced as agreed upon by the parties occurs; or
(4) any other circumstance that seriously affects the enforcement of the claim.
Article 407
A mortgage may not be transferred separately from the underlying claim or be used as security for another claim. Where a claim is transferred, the mortgage securing the claim shall be transferred concomitantly with it, unless otherwise provided by law or agreed by the parties.
Article 408
Where an act of a mortgagor suffices to reduce the value of the mortgaged property, the mortgagee is entitled to request the mortgagor to refrain from performing such an act. Where the value of the mortgaged property is reduced, the mortgagee is entitled to request the mortgagor to restore its value or provide additional security to the extent of the reduced value. Where the mortgagor neither restores the original value of the mortgaged property, nor provides additional security therefor, the mortgagee is entitled to request the debtor to pay off the debt before it is due.
Article 409
A mortgagee may waive his right to the mortgage, or waive his priority order in the line of the mortgagees. A mortgagee and the mortgagor may reach an agreement to change such things as the mortgagee’s priority order in the line of the mortgagees and the amount of the secured claim, provided that any change to the mortgage may not adversely affect the other mortgagees without their written consent.
Where a debtor creates a mortgage on his own property, and the mortgagee waives his right to the mortgage and his priority order in the line of mortgagees, or changes the mortgage, the other security providers shall be exempted from the security liability to the extent of the rights and interests of the mortgagee that are forfeited owing to the waiver of his priority to be paid from the mortgaged property, unless the other security providers are committed to still provide security.
A mortgage may not be transferred separately from the underlying claim or be used as security for another claim. Where a claim is transferred, the mortgage securing the claim shall be transferred concomitantly with it, unless otherwise provided by law or agreed by the parties.
Article 408
Where an act of a mortgagor suffices to reduce the value of the mortgaged property, the mortgagee is entitled to request the mortgagor to refrain from performing such an act. Where the value of the mortgaged property is reduced, the mortgagee is entitled to request the mortgagor to restore its value or provide additional security to the extent of the reduced value. Where the mortgagor neither restores the original value of the mortgaged property, nor provides additional security therefor, the mortgagee is entitled to request the debtor to pay off the debt before it is due.
Article 409
A mortgagee may waive his right to the mortgage, or waive his priority order in the line of the mortgagees. A mortgagee and the mortgagor may reach an agreement to change such things as the mortgagee’s priority order in the line of the mortgagees and the amount of the secured claim, provided that any change to the mortgage may not adversely affect the other mortgagees without their written consent.
Where a debtor creates a mortgage on his own property, and the mortgagee waives his right to the mortgage and his priority order in the line of mortgagees, or changes the mortgage, the other security providers shall be exempted from the security liability to the extent of the rights and interests of the mortgagee that are forfeited owing to the waiver of his priority to be paid from the mortgaged property, unless the other security providers are committed to still provide security.
To create a pledge, the parties shall enter into a pledge contract in writing.
A pledge contract generally contains the following clauses:
(1) the type and amount of the secured claim;
(2) the term for the debtor to perform the obligation;
(3) such particulars as the name and quantity of the pledged property;
(4) the scope of the security covered; and
(5) the time for and the mode of the delivery of the pledged property.
Article 428
Where, prior to the due date of performance of an obligation, the pledgee reaches an agreement with the pledgor under which the pledged property belongs to the creditor in the event that the debtor fails to perform the obligation due, the pledgee, regardless, may only have priority to be paid from the pledged property in accordance with law.
Article 429
A pledge is created upon delivery of the pledged property by the pledgor.