(I) Concept and Classification of Pledge Known as "pledge right" in traditional civil law, it refers to a written contract between the creditor and the debtor or a third party provided through negotiation, which transfers the possession of the debtor's or a third party's movable property or rights. When the debtor fails to perform the debt, the creditor has the right to be paid in priority with the property price. Pledge is a kind of guarantee. According to the Guarantee Law, according to different types of pledge, pledge can be divided into chattel pledge and right pledge.

(B) the difference between pledge and mortgage

1. The objects of mortgage and pledge are different. Traditionally, the object of mortgage is real estate (modern legislation also includes some movable property), and the object of pledge is movable property and rights.

2. In mortgage and pledge, whether the subject matter is transferred is different. In the legal relationship of mortgage, the subject matter of mortgage is not transferred, but still possessed, used and benefited by the mortgagor. The right of the mortgagee lies in the right to interfere with the debtor's disposal of the mortgaged property without its consent, and the right to pursue the subject matter and get priority compensation. In the pledge, the movable property and rights as the subject matter will be transferred and occupied. After the establishment of the pledge contract, the debtor shall deliver the subject matter to the creditor for possession. The movable property should be delivered for possession, and the right should also be delivered with a certificate of right, such as a patent certificate and a trademark certificate, so that the possessor can enjoy the benefits according to the certificate, thus playing a role of guarantee. In addition to the above two main differences, there are other differences, so I won't elaborate here.

(C) the characteristics of pledge

1. Pledge is a security interest.

Because pledge is set to guarantee creditor's rights, it is a kind of real right for security. This is the similarity between pledge and mortgage, lien and other security interests. This is also the point that pledge is not used for usufructuary right. Although pledge is a kind of real right, it is a direct and exclusive right to control the exchange value of the subject matter. Therefore, whether the object of pledge is tangible movable property or rights, the content of pledge lies in the control of its exchange value.

2. The token is subordinate.

Pledge is a right aimed at securing creditor's rights, which forms a master-slave relationship with the secured creditor's rights. The secured principal creditor's right is the principal right, and the pledge of the secured principal right is the subordinate right. The subordination of pledge is manifested in three aspects: first, the subordination of existence. Pledge is based on the existence of principal creditor's rights. When the principal creditor's right is invalid or does not exist for other reasons, the pledge right cannot exist. The second is the subordination of transfer. When the principal creditor's rights are transferred, the pledge right is also transferred; The third is the subordination of elimination. The principal creditor's rights are extinguished. Of course, the pledge will also be eliminated.

3. The indivisibility of pledge right

After the pledge is set, the creditors will exercise their rights over the pledged property as a whole, such as the division and partial transfer of the pledged property, the division of creditor's rights and the e-commerce database 3"/ 1! ; (*; 2'' Partial transfer or partial settlement shall not affect the existence of the pledge. The effectiveness of pledge extends to all secured creditor's rights and all subject matter, that is, the pledgee has the right to lien and auction all subject matter when part of the original creditor's rights or interest is not paid off, which is the indivisibility of pledge.

4. Subrogation and preservation of pledge.

Pledge is a value right. The pledgee has the right to take necessary measures to preserve the value of the pledged property. When the value of the pledged property is reduced due to the pledgee's fault, which is enough to endanger the pledgee's rights, the pledgee has the right to ask the pledgee to provide corresponding guarantee for the reduced value of the pledged property, which is called pledge preservation. When the subject matter is lost or damaged and compensation is obtained (including damage compensation and insurance compensation), the pledgee has the priority of compensation-pledge subrogation.

(4) Pledge contract

1. The concept of pledge contract

Pledge contract refers to the agreement signed between the debtor or the third party and the creditor, which stipulates that the debtor or the third party will hand over his property to the creditor for possession and take the property as the guarantee of the creditor's right. When the debtor fails to perform the debt, the creditor has the right to be paid in priority with the price of the sold property. Among them, the debtor or the third party is the pledger and the creditor is the pledgee.

2. Characteristics of pledge contract

(1) The pledge contract is a supplementary contract. A pledge contract is an agreement between the debtor or a third party and the creditor. When the debtor fails to perform the debt, the creditor has the right to be paid in priority by selling the property of the debtor or a third party. Therefore, when the debtor of the main contract has fulfilled his debts, he shall not be given priority in compensation by selling the property handed over by the debtor or a third party. In this sense, the pledge contract is a supplementary contract to the main contract.

(2) The pledge contract is subordinate to the contract. The conclusion of the pledge contract aims to guarantee the realization of the creditor's rights of the main contract and form a master-slave relationship with the guaranteed main contract. The contract concluded between the secured debtor and the creditor is the main contract, and the pledge contract is the subordinate contract. The subordination of pledge contract is mainly manifested in the following aspects: First, the subordination of existence. The pledge contract must be based on the legal existence of the main contract. When the master contract is invalid or does not exist for other reasons, the pledge contract cannot exist. The second is the subordination of transfer. The pledge contract is established to guarantee the performance of the main debt, and the pledge contract and the main contract shall not be transferred separately. The third is the subordination of extinction. When the debts of the main contract have been fulfilled or the creditor's rights have been realized by other means, the pledge contract shall also be terminated or dissolved at the same time.

(3) The pledge contract is a two-service free contract. The pledge contract is designed to ensure the realization of the principal creditor's rights. The main feature of pledge is to hand over the pledgor's property to the pledgee. Therefore, the pledgor has the obligation to provide the subject matter, and the pledgee has the obligation to properly keep the subject matter; The pledgor has the obligation to guarantee the rights of the subject matter, and the pledgee has the obligation to return the subject matter after the debtor of the main contract performs his debts. From the date of establishment of the pledge contract, both parties have mutual obligations. At the same time, the pledge contract is a free contract, designed only to ensure the realization of the creditor's rights in the main contract, and both parties do not need to pay corresponding remuneration.

(4) The pledge contract is a practical contract. According to whether the establishment of a contract is based on the delivery of the subject matter, a contract can be divided into a promise contract and a practice contract. In practice, a contract can only be established if both parties agree on the meaning, and the subject matter must be delivered. The pledge of movable property is based on Article 64 of the Guarantee Law: "The pledgor and the pledgee shall conclude a pledge contract in writing. The pledge contract takes effect when the pledged property is handed over to the pledgee. " Pledge of Rights Article 76 of the Guarantee Law stipulates: "The pledge contract shall take effect from the date of delivery of the certificate of rights."

(5) Pledge of movable property

1. The concept of chattel pledge

Chattel pledge means that the debtor or the third party transfers his chattel to the creditor for possession, and takes it as the guarantee of creditor's rights. When the debtor fails to perform the debt, the creditor has the right to receive compensation in priority by discounting the movable property or by auctioning or selling the movable property in accordance with the provisions of the security law.

The debtor or the third party specified in the preceding paragraph is the pledger, the creditor is the pledgee, and the transferred movable property is the pledgee.

Step 2 guarantee

The so-called pledge is the object of the legal relationship of chattel pledge, that is, the subject matter of pledge is the chattel handed over by the pledger to the creditor, and pledge is the core of chattel pledge guarantee. Since the pledge in the legal relationship of chattel pledge is used to guarantee the creditor's rights, when the debt repayment period expires and the debtor fails to perform the debt, the pledgee has the right to finally ensure the realization of the pledgee's rights with the value of the pledge. The pledge must be movable property, which is an internationally accepted principle and an important symbol different from traditional mortgage (collateral is real estate).

What is chattel? The Security Law stipulates that the term "immovable property" as mentioned in this Law refers to land, houses, trees and other things fixed on the ground. Movable property as mentioned in this Law refers to things other than immovable property.

3. Chattel pledge contract

A chattel pledge contract refers to a pledge contract with chattel as the subject matter, which must be directly possessed by the pledgee.

(1) Effective time of chattel pledge contract. Article 64 of the Guarantee Law stipulates that the pledgor and the pledgee shall conclude a pledge contract in writing, and the pledge contract shall take effect when the pledged property is handed over to the pledgee for possession.

(2) The main contents of the chattel pledge contract. According to Article 65 of the Guarantee Law, the pledge contract shall include the following contents: ① the type and amount of the principal creditor's rights guaranteed; (2) The time limit for the debtor to perform the debt. E-commerce database %657225! "9.(.78; (3) The name, quantity, quality and condition of the pledge; (4) The scope of pledge guarantee; ⑤ Time of pledge handover; ⑥ Other matters that the parties think need to be agreed.

In addition, if the pledge contract does not fully comply with the provisions of the preceding paragraph, it can be supplemented. The pledgor and the pledgee shall not stipulate in the contract that the ownership of the pledged property shall be transferred to the pledgee when the pledgee has not been paid off at the expiration of the debt performance period.

4. Scope of chattel pledge guarantee

In principle, the scope of pledge guarantee shall be freely agreed by the parties. If there is no agreement or the agreement is not clear, the scope of legal pledge guarantee shall apply, that is, the principal creditor's rights and interest, liquidated damages, damages, storage expenses of pledged goods and expenses for realizing pledge.

The principal creditor's right refers to the creditor's right to the debtor in the principal debt contract secured by chattel pledge, excluding the interest and other creditor's rights generated by the principal creditor's right.

Interest refers to the total interest of the principal creditor's rights when the pledge is implemented. Interests can be determined according to law, or agreed by the parties, but they cannot violate the excessively high interests agreed by law, otherwise the law will not protect them.

Liquidated damages refer to the amount that the debtor should pay to the creditor in accordance with the law or the contract when he fails to perform his obligations under the contract.

Damage compensation refers to the amount that the debtor should compensate when the debtor fails to perform the contract and causes damage to the creditor.

The expenses for keeping the pledged property refer to the expenses incurred by the pledgee during the period of keeping the pledged property. For example, the cost of necessary maintenance of quality, the cost of raising quality (such as animals).

The cost of realizing pledge refers to all the expenses needed to realize pledge. Such as quality appraisal fees, quality auction fees, etc.

If the parties agree on the scope of pledge guarantee, it may be less than or not limited to the statutory scope of guarantee. As long as the agreement between the parties does not violate the principles of equality, voluntariness, fairness, honesty and credibility, it is valid and protected by law.

Pledge and secured creditor's rights exist at the same time. If creditor's rights are eliminated, the pledge right is also eliminated.

5. Rights and obligations of chattel pledgee

(1) Rights: ① the right to keep the pledge. Before the debtor pays off the debt, the creditor has the right to retain the pledge until the creditor's right is realized. (2) the right to collect fruits. The right of the pledgee to collect fruits means that the pledgee has the right to collect fruits. However, the pledgee does not obtain the ownership of the fruits, but only obtains the pledge of the fruits. Fruit can be money or something other than money. According to Article 68 of the Guarantee Law, the pledgee has the right to collect the fruits of the pledge. Unless otherwise agreed in the pledge contract, such agreement shall prevail. Fruit should first be used to offset the cost of collecting fruit. (3) the right of relief for the loss of pledge. According to Article 70 of the Guarantee Law, if the pledged property is damaged or its value is obviously reduced, which is enough to endanger the rights of the pledgee, the pledgee may require the pledgor to provide corresponding guarantee. If the pledgor cannot provide it, the pledgee may auction or sell the pledged property, and agree with the pledgor that the proceeds from the auction or sale shall be used to pay off the secured creditor's rights in advance or to deposit with a third party agreed with the pledgor. (4) Priority of compensation. The pledgee has the priority to be compensated for the pledged property. Article 71 of the Guarantee Law stipulates that if the pledgee has not been paid off at the expiration of the debt performance period, he may agree with the pledger to discount the pledged property, or auction or sell the pledged property according to law.

After the pledged property is discounted, auctioned or sold, the part of the price exceeding the amount of creditor's rights belongs to the pledgor, and the insufficient part is paid off by the debtor. In addition, the pledge is destroyed by the loss of the pledge. Compensation for losses shall be used as pledged property.

(2) Obligation: ① Obligation to keep quality. When the pledgee takes possession of the pledged property, he should naturally assume the obligation to keep the pledged property. Paragraph 1 of Article 69 of the Guarantee Law stipulates: "The pledgee has the obligation to properly keep the pledged property. If the pledged property is lost or damaged due to improper storage, the pledgee shall bear civil liability. " (2) Obligation to deposit the pledged property. Item 1, Paragraph 2, Article 69 of the Guarantee Law stipulates that if the pledgee cannot properly keep the pledge, which may cause its loss or damage, the pledgor may require the pledgee to deposit the pledge. ③ Return the pledged e-commerce database 2. #%.&; :) 8 & kloc-0/4 obligations. According to the Guarantee Law, the obligation of the pledgee to return the pledged property is manifested in two aspects: (1) When the debtor properly performs the debt, the pledgee shall return the pledged property; (b) When the pledgor pays off the creditor's rights secured by pledge in advance, the pledgee shall return the pledged property.

6. Rights and obligations of the mortgagor

(1) Restrict the right to dispose of the ownership of the pledged property. The pledgor's transfer of possession of the pledged property does not mean the ownership of the pledged property, and the pledgor still has the right to dispose of the pledged property, provided that the rights of the pledgee are not affected.

If the pledgee can't properly keep the pledged property, which may lead to its loss or damage, the pledgor may require the pledgee to deposit the pledged property, or demand to pay off the creditor's rights in advance and return the pledged property.

(2) the rights of the property guarantor. For the benefit of the debtor, a third party enters into a pledge contract with the creditor, and takes its own movable property as pledge to guarantee the debtor. Theoretically, such a third party is called a "material guarantor", that is, it pledges the debts assumed by others and only bears limited liability for the debts limited to that thing.

When the property guarantor pays off debts for the debtor, the relationship between the debtor and the property guarantor is the same as that between the principal debtor and the guarantor who pays off. When the property guarantor loses the ownership of the pledge due to the realization of the pledge, he should pay off the debt on behalf of the debtor with his own property and enjoy the right of subrogation. Article 72 of the Guarantee Law stipulates that the third party who pledges the guarantee for the debtor has the right to recover from the debtor after the pledgee realizes the pledge right.

(3) the obligation to transfer the possession of the pledge.