The difference between guarantee, mortgage and pledge:

1. Different types of collateral

Both the mortgage and the pledge must be the mortgagor or the pledger Property that has the right to dispose of, is allowed to be transferred by law, and is easy to manage and implement, but there are differences in specific types and scope. Mortgages are generally real estate, including houses and other fixed objects on the ground owned by the mortgagor; state-owned land use rights, houses and other fixed objects that the mortgagor has the right to dispose of according to law can be used as collateral. However, in practice, a relatively large number of mortgages are set on these movable properties. few. The pledge is generally movable, which is light, simple, easy to move in space and easy to keep. The subject matter of the rights pledge includes bills of exchange, promissory notes, bonds, deposit receipts, warehouse receipts, bills of lading, legally transferable shares, stocks, and legally transferable trademark exclusive rights, patent rights, property rights in copyrights, etc.

2. It is different whether the right of possession is transferred

In a mortgage guarantee, the possession of the mortgaged property is not transferred, and the owner, the mortgagor, only provides the exchange value of the property to the mortgage rights holder. In this way, the mortgagor can make full use of the use value of the mortgaged property and obtain income to pay off the creditor's rights, thereby ensuring that the creditor realizes the creditor's rights as soon as possible, and the creditor also has the priority right to be repaid. Therefore, mortgage guarantee is the most ideal form of guarantee, which is beneficial to both debtors and creditors. Pledge is a form of guarantee for transferring the possession of the pledged property. Once the pledge contract is established, the pledger should hand over the pledged property to the pledgee for possession. The pledger only retains the ownership of the pledged property. This is the most obvious aspect of the pledge. feature. Since the pledgee has the obligation to properly keep the pledged property and is not allowed to use it during the period of possession of the pledged property, the use value of the pledged property cannot be utilized and brought into play, which is a defect of the pledge. However, from the perspective of protecting the legitimate rights and interests of the parties and third parties, the law has to sacrifice the effectiveness of the pledge to a certain extent.

3. The publicity method and the effective time of the contract are different

In mortgage guarantees, considering that the possession of the mortgage will not be transferred, our country’s law has established a mortgage registration system. Among them, factories and other buildings of regular township (town) and village enterprises; trees; aircraft, ships, vehicles; enterprise equipment and other movable properties. If the mortgage is set up with other properties, as long as both parties have the same intention, the contract can be established and take effect from the date of signing. During the pledge, since the handed-over pledge itself already has the function of publicity, it is generally not necessary to conduct special registration. However, there are exceptions. That is, if the property rights in stocks and intellectual property rights are pledged, the pledge registration should be completed with the corresponding management department. . The effective time of the pledge contract is stipulated separately: in the pledge of chattels, the contract shall take effect when the pledged property is handed over; in the pledge of rights, if the creditor's rights such as bills of exchange are pledged, the contract shall take effect from the date when the rights certificate is delivered to the pledgee. Effective; if shares are pledged, the contract shall take effect from the date when the shares are pledged and recorded in the shareholder register; if shares or intellectual property rights are pledged, the contract shall be effective from the date of registration of the pledge.

4. Whether the security right can be repeatedly set up is different

In a mortgage guarantee, more than two mortgage rights can be set up on the same collateral. In the pledge guarantee, since the delivery of the pledge and the transfer of possession are the requirements for the valid establishment of the contract, it is impossible to repeatedly set up the pledge.

Guarantee mainly has the following five characteristics:

(1) Guarantee has dependency. This is reflected in the following: the guarantee contract is predicated on the effective existence of the main contract; the scope and intensity of the guarantee are subordinate to the main debt and shall not be greater or stronger than the main debt; the guaranteed creditor's rights are transferred with the transfer of the main creditor's rights; the guaranteed debt of the guarantor expires during the guarantee period. Memory exists; the guaranteed debt is extinguished when the principal debt is extinguished.

(2) Ensure independence. Guaranteed debt is not part of the main debt, but a separate debt independent of the main debt. This characteristic of guarantee is also an important symbol that distinguishes guarantee from debt assumption.

(3) Guaranteed to be free of charge. A guarantee contract is a free contract. The guarantor's guaranteed debt does not come at the expense of obtaining certain property rights from the creditor, and the creditor enjoys guaranteed claims against the guarantor without paying any price.

(4) Guaranteed to be supplementary. Guaranteed debt is a supplement and enhancement to the main debt. The supplementary nature of the guarantee mainly lies in the fact that only when the main debtor fails to perform the debt, the guarantor will be responsible for fulfilling the guaranteed debt.

(5) Guaranteed to be single-service. The guarantee contract is a single transaction.

There is no mutual obligation to pay between the parties involved in the guarantee, so the issue of the order of performance of obligations does not arise.

The characteristics of mortgage are as follows:

1. A mortgage is a security interest set on the specific property of the debtor or a third party;

2. The title stipulates that the security rights are not statutory security rights;

3. The mortgage right is a property right that does not transfer the possession of the subject matter;

4. The publicity of the mortgage right is mainly the registration ;

5. The establishment and survival of the mortgage right only requires registration, and does not require the transfer of possession of the subject matter;

6. The content of the mortgage right is the right to change the price and the right to priority payment.

Characteristics of a pledge: the debtor or a third party is the pledger, and the creditor is the pledgee; the pledge does not transfer the ownership of the property, but only the ownership of the property; and the pledge is subordinate and has priority in payment. , and object subrogation.

Legal basis:

"People's Republic of China and Civil Code"

Article 394: For the performance of guaranteed debts, the debtor or the third party shall If the three persons do not transfer the possession of the property and mortgage the property to the creditor, and the debtor fails to pay due debts or the circumstances agreed by the parties to realize the mortgage rights occur, the creditor shall have the right to receive priority payment for the property.

The debtor or third party specified in the preceding paragraph is the mortgagor, the creditor is the mortgagee, and the property providing guarantee is the mortgaged property.

Article 425: In order to guarantee the performance of a debt, the debtor or a third party pledges its movables to the creditor for possession, and the debtor fails to perform the due debt or the circumstances agreed by the parties to realize the pledge occur. , the creditor has the right to receive priority payment for the movable property.

The debtor or third party specified in the preceding paragraph shall be the pledger, the creditor shall be the pledgee, and the movable property delivered shall be the pledged property.