중국 물권법의 담보물권 규정과 담보법 및 사법해석 상호간의 효력문제

Abstract

The property law was enacted in China in 2007 in the wake of labor pains for many years. From October of that year, the new law on the real-right relationship between individuals has been enforced in China. This implies to prescribe the legal relationship,which had been regulated in the meantime by custom, court’s judicial interpretation, or special law, as the unified legislation. According to the provisions of the property law, the types of a real right include ownership, usufructuary real right, and security real right. The usufructuary real right includes farmland use right, rights of the land for construction,building-site use right, and easement. The security real right includes mortgage, right of pledge, and lien. Even in addition to this, the real right in light of special law includes preferential right in light of marine law, and mining right, lighting right, sea-area use right, intake right, and fishery right, which are so-called quasi-real rights. However, the provision pertinent to these real rights is revealing difference from custom or judicial interpretation in China in the meantime. Many problems about this are being exposed. In other words, especially due to inconsistency with security real right and other provisions even among those things, many problems are being caused. This is because the security real right is one means of circulating fund from the position of enterprise or provider. This inconsistency comes to function as lots of risks from the position of foreign enterprise, which invests in China. This study aims to prevent the unpredicted damage of our enterprise or investor, which tries to invest in China, and to increase understanding about China’s security real right. That is because there is necessity for seeking for solution through this. Through this study, there is aspect that can prevent the unpredicted damage to some extent, which may be caused by the lack of understanding about the security real right in the process that foreign enterprises, our enterprises or investors, which try to invest in China, obtain finance by offering mortgage in order to secure investment fund in China. And, there is positive effect as saying of being able to secure stable finance based on enough understanding about the mutually inconsistent provisions pertinent to the security real right. Additionally, disadvantage can be prevented to some extent by offering prior information on the security real right in China to enterprises that try to invest in China in the future.