英国浮动抵押制度的研究外文翻译
中英浮动抵押制度比较研究
中英浮动抵押制度比较研究摘要：浮动抵押制度起源于英国的衡平法，这一制度的引进给我国司法实践和法学理论带来了很多疑惑，本文在宏观介绍浮动抵押来源的基础上，对中英两国在主体、抵押物的结晶以及权利人救济等微观角度比较分析，解决疑惑的同时提出了完善建议。
关键词：浮动抵押结晶接管人我国《物权法》第181条规定：经当事人书面协议，企业、个体工商户、农业生产经营者可以将现有的以及将有的生产设备、原材料、半成品、产品抵押债务人不履行到期债务或者发生当事人约定的实现抵押权的情形，债权人有权就实现抵押权时的动产优先受偿。
本条是关于浮动抵押的规定。
浮动抵押制度是英国衡平法的创造物，许多国家都借鉴之。
本文试以比较法为视角，从抵押人、结晶以及救济等突出方面对我国与英国的浮动抵押制度进行有益探讨，从中借鉴之完善之。
一、浮动抵押的起源浮动抵押制度起源于英国法，是英国衡平法的一项创造。
英国的“浮动抵押（Floating Charge）”也被译作“浮动担保”“浮动财产负担”等。
根据中国《担保法》，担保是一种统称，而“抵押”是担保其中的一种方式。
把“抵押”定为债务人或者第三人不转移对财产的占有而将该财产作为债权的担保。
我国2007年通过的《物权法》首次在立法中明确规定“浮动抵押”，是对英国浮动抵押制度的借鉴。
英国法上的浮动抵押是伴随着有限责任公司的不断增加以及借贷贸易的日益发展而产生的。
在1904年，Macnaghten法官在lllingworth v．Houldsworth一案的判决中对浮动抵押做了经典描述：“浮动抵押本质上是流动与变化的，悬浮于它企图影响的财产上或者说与其一起浮动，直到某事件的发生或某行为的作出使其固定于在其效力范围内的抵押财产上。
”浮动抵押是英国判例法的产物，也是英国法官适用、解释甚至创制法律规则的产物。
二、浮动抵押的抵押人（一）英国法上公司债的担保英国的浮动抵押制度见于公司法相关规定中，英国法上的浮动抵押限于公司债的担保。
中英浮动抵押制度比较分析
中英浮动抵押制度比较分析作者：焦正国来源：《法制与社会》2009年第13期摘要我国《物权法》规定的浮动抵押制度与英国浮动抵押制度相比,在制度运行机制方面存在诸多不同,本文在对此进行分析的基础上,就完善我国浮动抵押制度提出了相关建议。
关键词浮动抵押物权法完善中图分类号:D920.5文献标识码:A文章编号:1009-0592(2009)05-056-01一、浮动抵押的概念和特征浮动抵押指抵押人在其现在和将来所有的全部或部分财产上设定的抵押,在抵押权实行之前,抵押人对抵押财产享有在正常经营中的自由处分权。
其特征:第一,抵押标的具有广泛性、集合性,涵盖现存及将来取得的土地、房屋、生产设备、存货、应收账款、知识产权等为企业经营所需的各类财产。
第二,抵押标的具有浮动性,属抵押标的范围的财产外流后,不受抵押权追及,流入财产当然进入抵押权效力范围,直至发生法定或约定情形,浮动抵押变为固定抵押。
第三,抵押人享有在正常经营中对抵押财产的自由处分权,这种权利几乎具有所有权的所有权能。
第四,浮动抵押具有转化性,即因法定或约定情形出现,抵押人丧失在正常经营中自由处分抵押财产的权利,原本变动不居的抵押财产变成固定抵押物,此过程被称为“确定”或“结晶”。
二、中英浮动抵押制度运行机制的比较分析(一)浮动抵押人的主体资格1.英国法中,浮动抵押人为公司,因公司受资本三原则(资本确定、资本维持和资本不变原则)的制约,降低了抵押财产浮动性致抵押权人担保利益受损的风险。
2.我国浮动抵押的设立主体为企业、个体工商户、农业生产经营者。
如此规定是为解决中小企业和农民贷款难问题,也显示出立法者致力于营造公平竞争的市场环境和对当事人意思自治的尊重。
(二)浮动抵押的抵押物范围1.英国浮动抵押的抵押物涵盖了土地、建筑物等不动产及相关权益,生产设备、存货等动产及其相关权益,知识产权、商誉等无形资产,应收账款及未来收益等公司经营所需的各类财产。
2.我国浮动抵押的抵押物为现有及将有的生产设备、原材料、半成品、产品,根据担保物上代位性的法理和《物权法》第174条,抵押期间,抵押财产因第三人的侵权行为或者其他原因毁损、灭失时,抵押人所获得的损害赔偿金;抵押人对抵押财产投保的,因保险事故发生而致使抵押财产毁损、灭失时,保险人支付的保险金;抵押财产被国家征收时,抵押人从国家处得到的补偿金均将作为抵押财产的代位物而自动进入抵押标的范围。
英国浮动抵押制度研究
英国浮动抵押制度研究一、本文概述本文旨在深入研究和分析英国浮动抵押制度，这是一种在英国公司法中广泛应用的重要融资工具。
浮动抵押制度允许借款人以其现有的和未来的资产作为担保，向贷款人提供抵押，从而获取融资。
这一制度以其灵活性和便利性在各类商业融资活动中占据了重要地位。
本文首先将对英国浮动抵押制度的基本概念进行阐述，包括其定义、特点、运作方式等。
然后，将深入探讨该制度在英国法律体系中的地位和作用，以及它在实践中的应用情况。
在此基础上，本文还将分析浮动抵押制度对借款人、贷款人和债权人等各方的影响，以及它在不同行业、不同场景下的应用效果。
本文还将对英国浮动抵押制度的法律环境进行深入研究，包括相关法律法规、司法实践和监管政策等。
通过对比分析不同案例和法律条文，本文将揭示英国浮动抵押制度在实际操作中的法律问题和风险点，并提出相应的解决方案和建议。
本文将对英国浮动抵押制度的未来发展趋势进行展望，分析其在新技术、新模式下的应用前景和挑战。
通过本文的研究，读者可以对英国浮动抵押制度有一个全面、深入的了解，为我国相关领域的发展提供借鉴和参考。
二、英国浮动抵押制度的法律框架英国浮动抵押制度，作为一种独特的担保方式，其法律框架的构建体现了英国法律的精细与严谨。
这一制度主要受到《英国公司法》和《英国物权法》的规范。
在《英国公司法》中，浮动抵押被定义为一种特别类型的担保，其特点在于抵押人在设定抵押时，无需确定抵押财产的具体范围，抵押财产的范围可以在抵押期间内浮动变化。
这一规定为企业的融资活动提供了极大的灵活性，允许企业以其未来的资产或现有的未特定化的资产作为担保进行贷款。
然而，这种灵活性也带来了一定的风险，因此，《英国公司法》对浮动抵押的设立、公示、执行等环节都做出了详细的规定，以确保交易的公平与安全。
《英国物权法》也为浮动抵押制度提供了重要的法律支撑。
该法明确了浮动抵押的物权属性，即浮动抵押权是一种担保物权，具有优先受偿的权利。
我国浮动抵押制度
我国浮动抵押制度浅析一、浮动抵押制度概述（一）浮动抵押的涵义及其特征浮动抵押（floating charge）又称”企业担保”，是英国衡平法院在司法实践中发展出来的一种特殊的抵押制度。
它首先确立于1870年英国上诉法院审理的panama，new zealand and australia royal mail co．案--上诉法院在判决中认为，公司可以抵押现有的和将来取得的全部财产，但抵押人不得干预公司的经营管理，也不得阻止出抵人处分企业的资产--这一判例正式确立了英国的浮动抵押制度，并逐渐在英美法系国家得到普遍适用。
大陆法系国家则或是借鉴英国的浮动抵押制度，在商法、民法、公司法等法律中加以增补，或是采用财团抵押的方式，如德国、瑞士，可以说都有浮动抵押制度的影子。
2007年颁布的《中华人民共和国物权法》（以下简称《物权法》）首次承认了这一新型的抵押方式，其第一百八十一条规定：”经当事人书面协议，企业、个体工商户、农业生产经营者可以将现有的以及将有的生产设备、原材料、半成品、产品抵押，债务人不履行到期债务或者发生当事人约定的实现抵押权的情形，债权人有权就实现抵押权时的动产优先受偿。
”纵观各国浮动抵押制度，较之固定抵押其具有如下特征：1、抵押客体的广泛性浮动抵押权的客体不是单独的某项财产或权利，它包括动产、不动产和无形资产、财产性权利等。
但这并不意味着企业必须以其全部财产作抵押--这是通常的情况，较容易为银行接受，但只以企业的一部分不确定资产作抵押也是允许的。
2、抵押客体的浮动性这是浮动抵押的本质特征。
浮动抵押的客体即抵押财产包括企业现有的财产，也包括企业将来取得的财产。
在抵押权实现之前，用于抵押的财产处于不断变动之中，亦即抵押人的资产随时可能退出或加入担保财产的范围，担保财产的数额无法固定和明确。
浮动抵押对于抵押确定前流出的财产不具有追及力，新流入企业的财产则当然地进入抵押权的效力范围。
wood对此曾经形象地比喻：”就像泰晤士河一样，河水不断的流入流出，但泰晤士河仍保持不变。
浮动抵押
浮动抵押初探摘要：浮动抵押源于英美法系,是伴随着经济发展对新类型担保制度的需要而产生的。
由于浮动抵押灵活的制度价值和对融资金融的益处,我国在物权法中引入了浮动抵押制度。
本文通过分析各国关于浮动抵押相关规定，找出我国浮动抵押制度还存在的不足，以其得到完善。
关键词：浮动抵押物权法局限性一浮动抵押制度的基本理论（一）.浮动抵押的起源和内涵浮动抵押起源于英国衡平法，英国上诉法院于1870 年通过Panama，New Zealand and Australian Royal Mail Co 一案的判决正式确立了浮动抵押制度，由此浮动抵押制度的效力为判例法的形式所确定。
到上世纪70 年代，苏格兰颁布了公司浮动抵押和代管人法，浮动抵押由判例法演变为成文法，成为各国设立浮动抵押制度所借鉴的典范。
浮动抵押（floating charge）是一种特别抵押，指抵押人将其现在和将来所有的全部财产或者部分财产上设定的担保，抵押权实行之前，抵押人对抵押财产保留在正常经营过程中的处分权。
（二）．浮动抵押实现1.设立。
抵押关系中的债权人，债务人或是愿意承担担保责任的第三人都可以要求设定浮动抵押（不同的国家对于浮动抵押的抵押人有不同的规定），既可以通过债券设定，也可以通过当事人之间的协议设定。
英国法上规定浮动抵押的设定，只需表明意图即可。
而日本的企业担保法却规定登记是其生效要件。
虽然各个国家对此规定不尽相同，但在设定浮动抵押的形式上，都要求必须为书面契约。
2. 特定化(结晶)。
当公司经营不善导致清算或债权人为执行担保权而合法介入，剥夺公司的财产处分权等时，这就会引起浮动抵押的特定化(结晶)。
浮动抵押特定化以后，设定抵押的财产此时就得以确定下来，不再变化，抵押人也不得再行使公司的经营权、控制权等等，抵押的性质根本改变，变为通常的固定抵押。
浮动抵押的实行一般会选任代管人完成，代管人的职权有清理公司现有的财产，实现对外债权，收取租金等，但不管理公司的经营事务。
浮动抵押制度研究
2013年第1期(总第100期)黑龙江省政法管理干部学院学报Jour na l of H e i l ongj i ang A dm i ni st r at i ve C adr e C ol l ege of Pol i t i cs A nd L awN o．12013(S um N o．100)浮动抵押制度研究刘莉(黑龙江司法警官职业学院，哈尔滨150069)摘要：我国《物权法》第181条和第189条的规定表明物权法体系中引入了浮动抵押担保制度。
从属于担保物权体系的浮动抵押制度虽然具有担保制度的共性，但是其个性更为突出，在制度构造、实现方式、法律效力方面都与现行的法律担保制度不同。
因此，有必要从浮动抵押制度基本理论入手，阐释其内涵、价值等以完善浮动抵押制度。
关键词：浮动抵押；价值分析；立法完善中图分类号：D F41文献标志码：A文章编号：1008—7966(2013)O l一0095—04一、浮动抵押制度历史渊源浮动抵押是担保物权体系的重要组成部分，是可确定财产担保的延伸，追本溯源，必然蕴含于罗马法的担保物权体系中。
罗马物权法不仅对所有权制度规定完备，而且在调整物的利用关系的他物权制度建制方面也依然发达。
无论是在整体制度架构设计上，还是具体制度体现上，罗马法担保物权制度对大陆法系和英美法系都产生了深刻影响。
从罗马法包含信托、质押、抵押等物权担保体系看，抵押权制度已经具有浮动抵押的萌芽特征，映射了现代法律制度精神。
最主要表现为标的物可以是聚合物，如牛羊群等可变化增减的财产，符合了浮动抵押制度的较为突出的可变化特性。
从英美法系看，现代意义上的浮动制度则是源于英格兰的衡平法。
1862年，H ol r oyd诉M ar shal l案中，确立了对于将来获得的财产可以设立抵押。
1870年的R e，Pa-r u pr t a，N ew z ea l a ne l C O．判例对浮动抵押制度予以确认。
浮动抵押制度研究
浮动抵押制度研究本文首先论述了浮动抵押制度的产生过程，对浮动抵押制度的概念进行了界定；在此基础上，结合对浮动抵押制度的特征分析，从浮动抵押的主体、标的、内容和设立与登记四个方面系统地阐述了浮动抵押法律关系并从浮动抵押的结晶及其条件、浮动抵押的实现方式两个方面论述了浮动抵押的实现问题；最后，对我国浮动抵押制度的利弊及存在的问题进行了阐述，进而提出了相关的完善建议。
关键词：浮动抵押浮动抵押实现立法完善一、浮动抵押制度概述（一）浮动抵押制度的产生与概念浮动抵押制度（floating charge）是一种融资担保形式，最早起源于英国的衡平法。
它在法律上经历了一个由否认到广泛应用并加以保护的过程。
19世纪中叶以前，英格兰的法院是不承认浮动抵押制度的。
19世纪50年代后，英格兰法有了新发展，衡平法院对浮动抵押的态度逐渐有了根本性的转变。
至1870年，英格兰上诉法院在审理Re Paruprta,New Zealand co.一案的判决中认为，“出抵一家企业现有的和将来取得的全部资产的效力等于出抵整个企业，但抵押权人不得干预企业的经营管理，也不得处分企业的资产”。
浮动抵押制度的效力遂通过该案例最终得以确立。
1972年，苏格兰颁布了公司浮动抵押和代管人法，将由判例法产生的浮动抵押制定了成文法，成为各国借鉴浮动抵押制度的典范。
浮动抵押，又称为浮动担保、企业担保。
那么，究竟何谓浮动抵押？作为浮动抵押源头的英国衡平法虽有许多判例对此进行阐述，但由于英国法律传统以判例为主要渊源的特点，因而在英国的成文法中很难找到关于浮动抵押的直接定义。
在1847年政府公债和其它担保投资公司诉马里拉铁路公司的判决书中，麦克拉亨法官对浮动抵押是这样定义的：“浮动抵押是在一个持续经营企业的财产之上设定的衡平法上的抵押，其标的物不断变动。
浮动抵押的本质在于：它保持休眠状态直到设立担保的企业停止运营或者直到担保权人介入。
”我国学者在研究这一外来制度时，对其概念亦有不同表述。
英国浮动抵押制度的研究外文翻译
British floating mortgage system researchReagan BeckerPerfection of securities systems is very important in each legal system because security is the oil and engine of the development of economy and there is a close relationship between them. Although the law of security has been passed in our country, there remains many problems such as simplicity of the types and defects of each kind of security which cannot meet the needs of raising money for enterprises. There are five kinds of security devices, namely guarantee, mortgage, pledge, lien and deposit. As to guarantee, creditors such as banks do rarely employ it for it is weakness as a result of a security by credit. As to mortgage, it is void if not be registered so the ambit of invalidity of security is increased and the parties do not like to use it. Moreover, the application of mortgage is largely reduced by that future assets do not be included in its subject matter. In addition, the use and flew of assets is greatly effected by the permission of creditor to dispose the assets. As to pledge, the efficiency of assets is limited by the possession of pledgee and that the pledgor has not right to dispose the assets. As to lien, it only applies to a few cases so it is not a typical security. As to deposit, it is not related to raise money. So it is very crucial to do some research on other legal systems. The floating charge called one of the most subtle creations of equity is a good subject for research to scholars of continental law and it is a common way for enterprises of the U.K. to borrow money. The floating charge can be created in all current and future assets of the enterprises to secure the debenture. The floating charge meets very well the needs of creditors and debtors because it ensures the needs of security of creditors and it entitles the right to debtors to deal with the assets of security. Where the provisions provided in the debenture have been breached, the creditor can appoint receiver to execute the security.As to the definition, there are three methods for judges to define the floating charge, including method of description, method of comparison and method of requirements. Macnaghten L.J said: a floating charge, on the other hand, is ambulatory and shifting in its nature, hovering over and so to speak floating with the property which it is intended to affect until some event occurs or some act is done which cause it to settle and fasten on the subject of the charge within its reach and grasp. Buckley L.J said: a floating security is not a future security; it is a present security which presently affects all the assets of the company expressed to be includedin itwa floating security is not a specific mortgage of the assets, plus a license to the mortgagor to dispose of them in the comprised in the securityw Romer L.J said: if a charge has the three characteristics that I am about to mention it is a floating charge. If it is a charge on a class of assets of a company present and future; if that class is one which, in the ordinary course of the business of the company, would be changing from time to time; and if you find that by the charge it is contemplated that, until some further step is taken by or behalf of those interested in the charge, the company may carry on its business in the ordinary way as far as concerns the particular class of assets I am dealing with. Although the floating charge has many advantages, for example, to meet the needs of chargee and chargor, to raise money, to decrease the limitation of improving efficiency of economy caused by using security and to rescue the company, its strength is challenged by some scholars. As to the genesis of the floating charge, it is a creation of the lawyers and the parties who want to borrow money as a result of the lack of adequate types of security for them to employ. The security in future assets created by the lawyers cannot be admitted by the common law, however, with the intervention of equity, together with the admission of some companies incorporated by parliament law to enjoy established by overcoming some theory difficulties. Comparing with the ordinary charges, the holder of the floating charge has right to deal with the assets subjected to of the floating charge in the ordinary course of business. What are the reasons of the right is very important to the theoretical basis. Throughout the cases concerning floating charges have run the threads of two different theories about their nature. The older theory, which can conveniently be called the "licence" theory, explains the company's power to act as the charge gives the chargor a licence to do so. The newer theory, called "the mortgage of future assets" theory, explains the company's power to deal with its assets by the fact that the charge does not attach specifically to any of its assets until some kind of security alike to the floating charge, the floating charge is finally crystallisation. Finally, although the special role in the development of economy, with the admission of the fixed charge on the book debts in 1970s and the advent of the culture of company rescue, some scholars has been challenged the value of the floating charge and they take the view that the floating charge should be abolished. Some scholars, however, suggest that the floating charge is historicheritage of the legal system of U.K., so it should be kept and could not be denied except reasonable reasons.The floating charge is often created for a company to raise money by debentures which are usually standard and should be registered in company registry within 21 days after creation. Now, a large number of creditors try to create fixed security on book debts which are usually subject matter of the floating charge as a result of different order of satisfaction of debts between the fixed charge and the floating charge. The fixed charge has priority to the preferential debts but the floating charge has not, so he intends to create fixed charge on book debts. However, for the benefit of unsecured creditors, the liquidator always persuade the courts to hold that the perported fixed charge is the floating charge. So many disputes arise.Without registration, the function of the floating charge cannot be worked well as it is most important part of the floating charge. According to companies act 1985(the registration part of Companies Act 1989 does not take into effect), the company registry, a department of the government is responsible for registration of the floating charge in U.K. The company has obligation to register security. It should afford security to be registered within 21 days from its creation. The registrar of companies will issue a certificate of which shows the completion of registration after checking. Besides registration of company registry, it is also needed to register in company. It is void against the administrator or the liquidator or any creditors in the insolvency or winding-up proceeding. If the conditions are satisfied the court almost will permit registration that does not register within the period unless the liquidation or administration has been begun or immediately begun. However, there is often a proviso, that is, the interests of intervention creditors cannot be damaged. The validity of registration in England and Welsh is very special as it is not requirements for against or for perfection(it is a requirement of perfection in Scotland). The floating charge is still valid between the parties without registration within 21 days after creation, although sanctions will be applied. The floating charge also can be valid against certain class of people, such as charges who have not registered their security and purchasers who is not in the ordinary course of business; however, it is void against receivers or liquidators or creditors. Even registered within 21 days, the floating charge cannot be against the subsequent fixed charges except they actually know the negative pledge clauses provided in the debenture. The purchasers in the ordinary course of business are not bound by the registration whether it is registered in 21 days. So registration is not a requirement of against or perfection, however, the floating charge if duly registered is valid against more persons. As to the validity ofrelied upon registration, Companies Act 1985 entitles the third parties relied upon the registration much more confidence than that of Companies Act 1989 because the latter has abolished the conclusive validity of the certificate of registration. There are many problems about registration systems of U.K., such as compartmentalization, complicated proceedings, blind period of visibility and irrelevancy between the time of registration and the priority, as a result, the scholars call on to reform the registration systems and there are three reports written by Lord Crowther, A.L.Diamond and company law review steering group in which the notice filing system is put forward to replace the old system.In respect of the priority between the competing interests, there are four rules established at common law, namely nemo dat quod non habet, legal interest acquired for value and without notice overrides prior equitable interest, a mortgagee may in certain conditions tack further advances for which be will rank in priority to a subsequent mortgagee and priority rules may be varied by agreement. The rules at common law are changed by legislation or cannot work as its original function as a result of the coming of positive law in which registration can give constructive notice to the subsequent charges who can argue that they do not know the prior security. The outcome of a priority dispute concerning registrable interests depends very largely on the particular type of registration system that is applicable, coupled with the overriding effect of s.395 of the Companies Act 1985 where the charge is given by a company and falls within the list set out in s.396 and the company later goes into liquidation or administration. The ranking of a floating charge in relation to subsequent interests arising prior to the crystallization of the charge partly on the type of interest in question and partly on whether the floating charge contains restrictions on dealings of which the subsequent claimant has notice.Crystallization is a bridge of conversion from the floating charge to the fixed charge. After crystallization, a floating charge becomes attached to the specific assets and the current assets and assets acquired after crystallization are the subjects of the floating charge. Crystallising events fall broadly into four groups. First, there are events denoting the cessation of trading by the company as a going concern. Secondly, there is intervention by the debenture holder to enforce his security which deprives the company of control of the charged assets and thus terminates its authority to deal with them free from the security interest. Thirdly, there are other acts or events specified in the debenture as causing the charge to crystallize. Fourthly, in the case of agriculturalcharges granted by a farmer the Agricultural Credits Act 1928 contains specific provisions for crystallization. As to the validity of automatic crystallization clauses, although the automatic crystallization clauses is valid between the holder of the floating charge and the company, because of absence of notice, they does not necessarily entitle the holder the priority over the subsequent creditors. Much of the argument directed against the validity of the automatic crystallization clause fails to separate the issue of attachment and priority. It is assumed that to give effect to the wishes of the parties as to the events that are cause the security interest to attach will as a necessary consequence result in the crystallized charge having priority over a charge with relations between the charge and third parties. But this is a mistake. It must restrict the crystallization clauses to major events that if happened could bring the management to end. Whilst for minor events the creditors can intervene or possession or appoint receivers. Or the court will doubt what is the true the intention of the parties where the parties do not take steps if the crystallization happened. If the parties want more flexibility, they can achieve that by part crystallization.Apart from powers given by law which is helpful to manage or investigate affairs of company, administrative receiver who takes control on the whole or substantially whole assets of company has comprehensive rights in which taking control assets of company, continuation of trade and disposals and reorganizations are the most ones. The duties of administrative receiver derive from equity. Equity has recognized duties of good faith and (on occasion) duties of care for the receiver and sometime the duty has been equated and expressed in terms of the tort of negligence. The administrator is a person appointed by the court in the administration and under the order of administration he has right to manage company affairs, business and assets. The administrator who enjoys a number of distinct capacities such as office of the court, officer of company, agent of company, fiduciary, office-holder is empowered to do all such things as may be necessary for the management of the affairs, business and property of the company. Besides with the same powers as those of the administrative receiver, the administrator is empowered other rights and duties that they are possessed only by him, for example, he has the right to appoint and replace the directors, the right to summon members and creditors and the right to dispose assets free from charge. In the exercise of his powers he is to be deemed to be acting as agent of the company, so a person dealing with him in good faith and for value is not concerned to inquire whether the administrator is acting within hispowers.The development of the floating charge in Japan is limited. Although in Germany the floating charge do not introduce, the same effects of the floating charge can be achieve by different securities. In America, there is a system whose function is same as the floating charge. The English-speaking jurisdictions were compelled to receive the floating charge by colonization. The introduction of the floating charge into the Scotland legal system will conflict with its private law because of the tradition of continental law which is quite different from the English law. The main problems are how to coordinate the floating charge with the present registration system, property law ideas and so on.From: Legal Research英国浮动抵押制度的研究里根·贝克尔信用担保是经济发展的动力和经济增长的发动机，担保与经济的增长和经济活动之促进密切相关，故各国法制十分重视担保制度的建设。
关于抵押贷款的文献翻译
Mortgage LoanA mortgage loan is a loan secured by real property through the use of a mortgage note which evidences the existence of the loan and the encumbrance of that realty through the granting of a mortgage which secures the loan. However, the word mortgage alone, in everyday usage, is most often used to mean mortgage loan.The word mortgage is a Law French term meaning "death contract," meaning that the pledge ends (dies) when either the obligation is fulfilled or the property is taken through foreclosure.[1]A home buyer or builder can obtain financing (a loan) either to purchase or secure against the property from a financial institution, such as a bank, either directly or indirectly through intermediaries. Features of mortgage loans such as the size of the loan, maturity of the loan, interest rate, method of paying off the loan, and other characteristics can vary considerably.In many jurisdictions, though not all (Bali, Indonesia being one exception[2]), it is normal for home purchases to be funded by a mortgage loan. Few individuals have enough savings or liquid funds to enable them to purchase property outright. In countries where the demand for home ownership is highest, strong domestic markets have developed.Mortgage loan basicsBasic concepts and legal regulationAccording to Anglo-American property law, a mortgage occurs when an owner (usually of a fee simple interest in realty) pledges his or her interest (right to the property) as security or collateral for a loan. Therefore, a mortgage is an encumbrance (limitation) on the right to the property just as an easement would be, but because most mortgages occur as a condition for new loan money, the word mortgage has become the generic term for a loan secured by such real property. As with other types of loans, mortgages have an interest rate and are scheduled to amortize over a set period of time, typically 30 years. All types of real property can be, and usually are, secured with a mortgage and bear an interest rate that is supposed to reflect the lender's risk.Mortgage lending is the primary mechanism used in many countries to finance private ownership of residential and commercial property. Although the terminology and precise forms will differ from country to country, the basic components tend to be similar:∙Property: the physical residence being financed. The exact form of ownership will vary from country to country, and may restrict the types of lending that are possible.∙Mortgage: the security interest of the lender in the property, which may entail restrictions on the use or disposal of the property. Restrictions may include requirements to purchase home insurance and mortgage insurance, or pay off outstanding debt before selling the property.∙Borrower: the person borrowing who either has or is creating an ownership interest in the property.∙Lender: any lender, but usually a bank or other financial institution. Lenders may also be investors who own an interest in the mortgage through a mortgage-backed security. In such a situation, the initial lender is known as the mortgage originator, which then packages and sells the loan to investors.The payments from the borrower are thereafter collected by a loan servicer.[3]∙Principal: the original size of the loan, which may or may not include certain other costs; as any principal is repaid, the principal will go down in size.∙Interest: a financial charge for use of the lender's money.∙Foreclosure or repossession: the possibility that the lender has to foreclose, repossess or seize the property under certain circumstances is essential to a mortgage loan; without this aspect, the loan is arguably no different from any other type of loan.Many other specific characteristics are common to many markets, but the above are the essential features. Governments usually regulate many aspects of mortgage lending, either directly (through legal requirements, for example) or indirectly (through regulation of the participants or the financial markets, such as the banking industry), and often through state intervention (direct lending by the government, by state-owned banks, or sponsorship of various entities). Other aspects that define a specific mortgage market may be regional, historical, or driven by specificcharacteristics of the legal or financial system.Mortgage loans are generally structured as long-term loans, the periodic payments for which are similar to an annuity and calculated according to the time value of money formulae. The most basic arrangement would require a fixed monthly payment over a period of ten to thirty years, depending on local conditions. Over this period the principal component of the loan (the original loan) would be slowly paid down through amortization. In practice, many variants are possible and common worldwide and within each country.Lenders provide funds against property to earn interest income, and generally borrow these funds themselves (for example, by taking deposits or issuing bonds). The price at which the lenders borrow money therefore affects the cost of borrowing. Lenders may also, in many countries, sell the mortgage loan to other parties who are interested in receiving the stream of cash payments from the borrower, often in the form of a security (by means of a securitization).Mortgage lending will also take into account the (perceived) riskiness of the mortgage loan, that is, the likelihood that the funds will be repaid (usually considered a function of the creditworthiness of the borrower); that if they are not repaid, the lender will be able to foreclose and recoup some or all of its original capital; and the financial, interest rate risk and time delays that may be involved in certain circumstances.Mortgage loan typesThere are many types of mortgages used worldwide, but several factors broadly define the characteristics of the mortgage. All of these may be subject to local regulation and legal requirements.∙Interest: interest may be fixed for the life of the loan or variable, and change at certain pre-defined periods; the interest rate can also, of course, be higher or lower.∙Term: mortgage loans generally have a maximum term, that is, the number of years after which an amortizing loan will be repaid. Some mortgage loans may have no amortization, or require full repayment of any remaining balance at a certain date, or even negative amortization.∙Payment amount and frequency: the amount paid per period and the frequency of payments; in some cases, the amount paid per period may change or the borrower may have the option to increase or decrease the amount paid.∙Prepayment: some types of mortgages may limit or restrict prepayment of all or a portion of the loan, or require payment of a penalty to the lender for prepayment.The two basic types of amortized loans are the fixed rate mortgage(FRM) and adjustable-rate mortgage(ARM) (also known as a floating rate or variable rate mortgage). In many countries (such as the United States), floating rate mortgages are the norm and will simply be referred to as mortgages. Combinations of fixed and floating rate are also common, whereby a mortgage loan will have a fixed rate for some period, and vary after the end of that period.∙In a fixed rate mortgage, the interest rate, and hence periodic payment,remains fixed for the life (or term) of the loan. Therefore the payment is fixed, although ancillary costs (such as property taxes and insurance) can and do change. For a fixed rate mortgage, payments for principal and interest should not change over the life of the loan,In an adjustable rate mortgage, the interest rate is generally fixed for a period of time, after which it will periodically (for example, annually or monthly) adjust up or down to some market index. Adjustable rates transfer part of the interest rate risk from the lender to the borrower, and thus are widely used where fixed rate funding is difficult to obtain or prohibitively expensive. Since the risk is transferred to the borrower, the initial interest rate may be from0.5% to 2% lower than the average 30-year fixed rate; the size of the pricedifferential will be related to debt market conditions, including the yield curve.The charge to the borrower depends upon the credit risk in addition to the interest rate risk. The mortgage origination and underwriting process involves checking credit scores, debt-to-income, downpayments, and assets. Jumbo mortgages and subprime lending are not supported by government guarantees and face higher interest rates. Other innovations described below can affect the rates as well.Loan to value and downpaymentsUpon making a mortgage loan for the purchase of a property, lenders usually require that the borrower make a downpayment; that is, contribute a portion of the cost of the property. This downpayment may be expressed as a portion of the value of the property (see below for a definition of this term). The loan to value ratio (or LTV) is the size of the loan against the value of the property. Therefore, a mortgage loan in which the purchaser has made a downpayment of 20% has a loan to value ratio of 80%. For loans made against properties that the borrower already owns, the loan to value ratio will be imputed against the estimated value of the property.The loan to value ratio is considered an important indicator of the riskiness of a mortgage loan: the higher the LTV, the higher the risk that the value of the property (in case of foreclosure) will be insufficient to cover the remaining principal of the loan.Value: appraised, estimated, and actualSince the value of the property is an important factor in understanding the risk of the loan, determining the value is a key factor in mortgage lending. The value may be determined in various ways, but the most common are:1.Actual or transaction value: this is usually taken to be the purchase price of theproperty. If the property is not being purchased at the time of borrowing, this information may not be available.2.Appraised or surveyed value: in most jurisdictions, some form of appraisal ofthe value by a licensed professional is common. There is often a requirement for the lender to obtain an official appraisal.3.Estimated value: lenders or other parties may use their own internal estimates,particularly in jurisdictions where no official appraisal procedure exists, but also in some other circumstances.Payment and debt ratiosIn most countries, a number of more or less standard measures of creditworthiness may be used. Common measures include payment to income (mortgage payments as a percentage of gross or net income); debt to income (all debt payments, including mortgage payments, as a percentage of income); and various net worth measures. In many countries, credit scores are used in lieu of or to supplement these measures. There will also be requirements for documentation of the creditworthiness, such as income tax returns, pay stubs, etc; the specifics will vary from location to location.Some lenders may also require a potential borrower have one or more months of "reserve assets" available. In other words, the borrower may be required to show the availability of enough assets to pay for the housing costs (including mortgage, taxes, etc.) for a period of time in the event of the job loss or other loss of income.Many countries have lower requirements for certain borrowers, or "no-doc" / "low-doc" lending standards that may be acceptable in certain circumstances. Standard or conforming mortgagesMany countries have a notion of standard or conforming mortgages that define a perceived acceptable level of risk, which may be formal or informal, and may be reinforced by laws, government intervention, or market practice. For example, a standard mortgage may be considered to be one with no more than 70-80% LTV and no more than one-third of gross income going to mortgage debt.A standard or conforming mortgage is a key concept as it often defines whether or not the mortgage can be easily sold or securitized, or, if non-standard, may affect the price at which it may be sold. In the United States, a conforming mortgage is one which meets the established rules and procedures of the two major government-sponsored entities in the housing finance market (including some legal requirements). In contrast, lenders who decide to make nonconforming loans are exercising a higher risk tolerance and do so knowing that they face more challenge in reselling the loan. Many countries have similar concepts or agencies that define what are "standard" mortgages. Regulated lenders (such as banks) may be subject to limits or higher risk weightings for non-standard mortgages. For example, banks and mortgage brokerages in Canada face restrictions on lending more than 80% of the property value; beyond this level, mortgage insurance is generally required.[4] Foreign currency mortgageIn some countries with currencies that tend to depreciate, foreign currency mortgages are common, enabling lenders to lend in a stable foreign currency, whilst the borrower takes on the currency risk that the currency will depreciate and they will therefore need to convert higher amounts of the domestic currency to repay the loan. Repaying the mortgageIn addition to the two standard means of setting the cost of a mortgage loan (fixed at a set interest rate for the term, or variable relative to market interest rates), there are variations in how that cost is paid, and how the loan itself is repaid. Repayment depends on locality, tax laws and prevailing culture. There are also various mortgage repayment structures to suit different types of borrower.Capital and interestThe most common way to repay a secured mortgage loan is to make regular payments of the capital (also called the principal) and interest over a set term. This is commonly referred to as (self) amortization in the U.S. and as a repayment mortgage in the UK. A mortgage is a form of annuity (from the perspective of the lender), and the calculation of the periodic payments is based on the time value of money formulas. Certain details may be specific to different locations: interest may be calculated on the basis of a 360-day year, for example; interest may be compounded daily, yearly, or semi-annually; prepayment penalties may apply; and other factors. There may be legal restrictions on certain matters, and consumer protection laws may specify or prohibit certain practices.Depending on the size of the loan and the prevailing practice in the country the term may be short (10 years) or long (50 years plus). In the UK and U.S., 25 to 30 years is the usual maximum term (although shorter periods, such as 15-year mortgage loans, are common). Mortgage payments, which are typically made monthly, contain a capital (repayment of the principal) and an interest element. The amount of capital included in each payment varies throughout the term of the mortgage. In the early years the repayments are largely interest and a small part capital. Towards the end of the mortgage the payments are mostly capital and a smaller portion interest. In this way the payment amount determined at outset is calculated to ensure the loan is repaid at a specified date in the future. This gives borrowers assurance that by maintaining repayment the loan will be cleared at a specified date, if the interest rate does not change. Some lenders and 3rd parties offer a bi-weekly mortgage payment program designed to accelerate the payoff of the loan.Interest onlyThe main alternative to a capital and interest mortgage is an interest-only mortgage, where the capital is not repaid throughout the term. This type of mortgage is common in the UK, especially when associated with a regular investment plan. With this arrangement regular contributions are made to a separate investment plan designed to build up a lump sum to repay the mortgage at maturity. This type of arrangement is called an investment-backed mortgage or is often related to the type of plan used: endowment mortgage if an endowment policy is used, similarly a Personal Equity Plan (PEP) mortgage, Individual Savings Account (ISA) mortgage or pension mortgage. Historically, investment-backed mortgages offered various tax advantages over repayment mortgages, although this is no longer the case in the UK. Investment-backed mortgages are seen as higher risk as they are dependent on the investment making sufficient return to clear the debt.Until recently it was not uncommon for interest only mortgages to be arranged without a repayment vehicle, with the borrower gambling that the property market will rise sufficiently for the loan to be repaid by trading down at retirement (or when rent on the property and inflation combine to surpass the interest rate).No capital or interestFor older borrowers (typically in retirement), it may be possible to arrange a mortgage where neither the capital nor interest is repaid. The interest is rolled up with the capital, increasing the debt each year.These arrangements are variously called reverse mortgages, lifetime mortgages or equity release mortgages (referring to home equity), depending on the country. The loans are typically not repaid until the borrowers are deceased, hence the age restriction.Interest and partial capitalIn the U.S. a partial amortization or balloon loan is one where the amount of monthly payments due are calculated (amortized) over a certain term, but the outstanding capital balance is due at some point short of that term. In the UK, a partial repayment mortgage is quite common, especially where the original mortgage was investment-backed and on moving house further borrowing is arranged on a capital and interest (repayment) basis.VariationsGraduated payment mortgage loan have increasing costs over time and are geared to young borrowers who expect wage increases over time. Balloon payment mortgages have only partial amortization, meaning that amount of monthly payments due are calculated (amortized) over a certain term, but the outstanding principal balance is due at some point short of that term, and at the end of the term a balloon payment is due. When interest rates are high relative to the rate on an existing seller's loan, the buyer can consider assuming the seller's mortgage.[5] A wraparound mortgage is a form of seller financing that can make it easier for a seller to sell a property. A biweekly mortgage has payments made every two weeks instead of monthly.Budget loans include taxes and insurance in the mortgage payment; [6]package loans add the costs of furnishings and other personal property to the mortgage. Buydown mortgages allow the seller or lender to pay something similar to mortgage points to reduce interest rate and encourage buyers.[7] Homeowners can also take out equity loans in which they receive cash for a mortgage debt on their house. Shared appreciation mortgages are a form of equity release. In the US, foreign nationals due to their unique situation face Foreign National mortgage conditions.Flexible mortgages allow for more freedom by the borrower to skip payments or prepay. Offset mortgages allow deposits to be counted against the mortgage loan. In the UK there is also the endowment mortgage where the borrowers pay interest while the principal is paid with a life insurance policy.Commercial mortgages typically have different interest rates, risks, and contracts than personal loans. Participation mortgages allow multiple investors to share in a loan. Builders may take out blanket loans which cover several properties at once. Bridge loans may be used as temporary financing pending a longer-term loan. Hard money loans provide financing in exchange for the mortgaging of real estate collateral.Foreclosure and non-recourse lendingMain article: foreclosureIn most jurisdictions, a lender may foreclose the mortgaged property if certain conditions - principally, non-payment of the mortgage loan - occur. Subject to local legal requirements, the property may then be sold. Any amounts received from thesale (net of costs) are applied to the original debt. In some jurisdictions, mortgage loans are non-recourse loans: if the funds recouped from sale of the mortgaged property are insufficient to cover the outstanding debt, the lender may not have recourse to the borrower after foreclosure. In other jurisdictions, the borrower remains responsible for any remaining debt.In virtually all jurisdictions, specific procedures for foreclosure and sale of the mortgaged property apply, and may be tightly regulated by the relevant government. There are strict or judicial foreclosures and non-judicial foreclosures, also known as power of sale foreclosures. In some jurisdictions, foreclosure and sale can occur quite rapidly, while in others, foreclosure may take many months or even years. In many countries, the ability of lenders to foreclose is extremely limited, and mortgage market development has been notably slower.Jurisdictional perspectivesA study issued by the UN Economic Commission for Europe compared German, US, and Danish mortgage systems. The German Bausparkassen has reported nominal interest rates of approximately 6 per cent per annum in the last 40 years (as of 2004). In addition, they charge administration and service fees (about 1.5 per cent of the loan amount). In the United States, the average interest rates for fixed-rate mortgages in the housing market started in the tens and twenties in the 1980s and have (as of 2004) reached about 6 per cent per annum. However, gross borrowing costs are substantially higher than the nominal interest rate and amounted for the last 30 years to 10.46 per cent. In Denmark, similar to the United States capital market, interest rates have fallen to 6 per cent per annum. A risk and administration fee amounts to 0.5 per cent of the outstanding debt. In addition, an acquisition fee is charged which amounts to one per cent of the principal.[8]Other countries outside Europe：each with their own unique law and regulations.[8]United StatesThe Mortgage industry of the United States is a major financial sector. The federal government created several programs, or government sponsored entities, to foster mortgage lending, construction and encourage home ownership. These programs include the Government National Mortgage Association (known as Ginnie Mae), the Federal National Mortgage Association (known as Fannie Mae) and the Federal Home Loan Mortgage Corporation (known as Freddie Mac).Fixed-rate mortgage are common in the United States, unlike most of Western Europe where variable-rate mortgages are more common. The United States has home ownership rates comparable to Europe, but overall default rates are lower in Europe than in the United States. Mortgage loan financing relies more on secondary mortgage markets and less on formal government guarantees backed by covered bonds and deposits. Prepayment penalties are discouraged by underwriting requirements of large organizations such as Fannie Mae and Freddie Mac. Mortgages loans are often nonrecourse debt, unlike the most of the world.The US subprime mortgage crisis was one of the first indicators of the 2007–2010financial crisis, characterized by a rise in subprime mortgage delinquencies and foreclosures, and the resulting decline of securities backing said mortgages. The earlier Savings and loan crisis of the 1980s and 1990s and National Mortgage Crisis of the 1930s also arose primarily from unsound mortgage lending. The mortgage crisis has led to a rise in foreclosures, leading to the 2010 United States foreclosure crisis.United KingdomThe Mortgage industry of the United Kingdom has traditionally been dominated by building societies, but from the 1970s the share of the new mortgage loans market held by building societies has declined substantially. Between 1977 and 1987, the share fell drastically from 96% to 66% while that of banks and other institutions rose from 3% to 36%. There are currently over 200 significant separate financial organizations supplying mortgage loans to house buyers in Britain. The major lenders include building societies, banks, specialized mortgage corporations, insurance companies, and pension funds.In the UK variable-rate mortgages are more common, unlike the fixed-rate mortgage common in the United States. Home ownership rates are comparable to the United States, but overall default rates are lower. Mortgage loan financing relies less on securitized assets and more on deposits, since funds raised by building societies must be at least 50% deposits. Prepayment penalties are still common, whilst the United States has discouraged their use. Like Europe and the rest of the world, but unlike most of the United States, mortgages loans are usually not nonrecourse debt, meaning debtors are liable for any loan deficiencies after foreclosure.Continental EuropeIn most of Western Europe (except Denmark, the Netherlands and Germany), variable-rate mortgages are more common, unlike the fixed-rate mortgage common in the United States.[9] [10] Much of Europe has home ownership rates comparable to the United States, but overall default rates are lower in Europe than in the United States.[9] Mortgage loan financing relies less on securitizing mortgages and more on formal government guarantees backed by covered bonds(such as the Pfandbriefe) and deposits, except Denmark and Germany where asset-backed securities are also common.[9][10]Prepayment penalties are still common, whilst the United States has discouraged their use.[9]Unlike much of the United States, mortgages loans are usually not nonrecourse debt.[9]Within the European Union, covered bonds market volume (covered bonds outstanding) amounted to about EUR 2 trillion at year-end 2007 with Germany, Denmark, Spain, and France each having outstandings above 200,000 EUR million.[11] Pfandbrief-like securities have been introduced in more than 25 European countries—and in recent years also in the U.S. and other countries outside Europe—each with their own unique law and regulations.[8]Recent trendsMortgage Rates Historical Trends 1986 to 2010On July 28, 2008, US Treasury Secretary Henry Paulson announced that, along with four large U.S. banks, the Treasury would attempt to kick start a market for these securities in the United States, primarily to provide an alternative form of mortgage-backed securities.[12]Similarly, in the UK "the Government is inviting views on options for a UK framework to deliver more affordable long-term fixed-rate mortgages, including the lessons to be learned from international markets and institutions".[13]George Soros's October 10, 2008 Wall Street Journal editorial promoted the Danish mortgage market model.[14]IslamicIslamic Sharia law prohibits the payment or receipt of interest, meaning that Muslims cannot use conventional mortgages. However, real estate is far too expensive for most people to buy outright using cash: Islamic mortgages solve this problem by having the property change hands twice. In one variation, the bank will buy the house outright and then act as a landlord. The homebuyer, in addition to paying rent, will pay a contribution towards the purchase of the property. When the last payment is made, the property changes hands.Typically, this may lead to a higher final price for the buyers. This is because in some countries (such as the United Kingdom and India) there is a Stamp Duty which is a tax charged by the government on a change of ownership. Because ownership changes twice in an Islamic mortgage, a stamp tax may be charged twice. Many other jurisdictions have similar transaction taxes on change of ownership which may be levied. In the United Kingdom, the dual application of Stamp Duty in such transactions was removed in the Finance Act 2003 in order to facilitate Islamic mortgages.[15]An alternative scheme involves the bank reselling the property according to an installment plan, at a price higher than the original price.Both of these methods compensate the lender as if they were charging interest, but the loans are structured in a way that in name they are not, and the lender shares the financial risks involved in the transaction with the homebuyer.Mortgage insuranceMortgage insurance is an insurance policy designed to protect the mortgagee (lender) from any default by the mortgagor (borrower). It is used commonly in loans。
浮动抵押制度本土化运行相关问题研究
浮动抵押制度本⼟化运⾏相关问题研究⼀、浮动抵押概念的再认识浮动抵押(floatingcharge)|l缘起于英国衡平法。
但因英国法以判例法为主要法源，该概念散见于不同的判例之中，因⽽欲对其提出精准定义则⼗分困难。
英国上诉法院于1870年RePanama，NewZealandandAustraliaRoyalMailCo.案中第⼀次承认该种新型抵押的效⼒，并确定了浮动抵押制度，并在之后的判例中得到法官的认同和发展。
通说认为其特征在于：1.抵押⼈在⽇常商业经营过程中享有对抵押物的⾃由处分权。
不同于⼀般形态的抵押，浮动抵押中的抵押⼈可以对已经设⽴浮动抵押的财产进⾏处分，且⽆须担保权⼈同意。
此点亦成为英国司法实务中判定该担保为浮动抵押的根本特征。
2.浮动抵押客体之浮动性。
抵押⼈可就⾃⼰现有或将来所有的财产⼀并进⾏抵押，并且基于⾃由处分的特点，抵押财产处于不断变动之中，因⽽呈现出抵押财产不特定的浮动性特征。
3.浮动抵押客体可特定。
因为对于浮动的抵押财产，其担保价值难以精确计算，权利⼈亦⽆法受偿其变价款来实现债权。
为了实现担保利益，因此赋予了浮动抵押客体可特定的特征。
特定化(crystallization)是指浮动抵押为实现其担保权益，解除抵押⼈⾃由处分之权利，浮动抵押的客体也因此⽽得以特定，这⼀特点是对于上述⼆者的反制。
然⽽，笔者认为上述理解并未全⾯揭⽰浮动抵押特征，只论及抵押⼈之权利，对于交易相对⼈的抵押权⼈之义务未予明确，且有遵循现⾏法错误观念之虞。
抵押⼈对于抵押物所享有的⾃由处分权在⼀般抵押中同样存在。
抵押⼈作为物之所有权⼈，当然享有处分物之权利，⽽对于抵押权⼈来说，其抵押权之效⼒仍可追及于买受⼈所得之物。
⽽在浮动抵押中，抵押⼈已为正常处分之物则不在抵押权⼈担保权效⼒范围之内，因⽽对此⽆追及效⼒。
所以将⾃由处分作为本质特征有失偏颇，笔者认为将抵押权⼈对于抵押⼈已为正常处分之物⽆追及效⼒作为其本质特征更为妥当。
浮动抵押权登记制度研究
一、问题的提出传统观点认为，抵押权作为物权的一种，具有支配性和排他性，由此而决定，抵押权只能及于特定物之上。
因此，抵押物应为特定的财产，如果抵押物不特定，抵押权人无从确定和直接支配标的物的交换价值，不能就标的物的变价款优先受偿。
《担保法》上由于坚守抵押权的特定性原则，对将来取得的财产上设定抵押权未作规定，限制了抵押权制度在实务中的运用和发展。
作者认为，抵押物的特定性并不能作为否定将来取得的财产之上设定抵押权的理由。
抵押权为支配抵押物交换价值的权利，但其支配权的具体行使是在抵押权实现之时，如果抵押物在抵押权实现时是特定的，抵押权即可以行使。
由此可见，抵押物的特定性表现为抵押权实现时的特定性，只要在抵押权实现时，抵押物为特定即可，将来取得的财产之上仍可设定抵押权。
《物权法》本于融通资金的需要，明确承认将来取得的财产之上可以设定抵押权，引进英国式的浮动抵押权制度，在第181条中明确规定：“经当事人书面协议，企业、个体工商户、农业生产经营者可以将现有的以及将有的生产设备、原材料、半成品、产品抵押，债务人不履行到期债务或者发生当事人约定的实现抵押权的情形，债权人有权就实现抵押权时的动产优先受偿。
”浮动抵押权为抵押权的一种，登记属其公示方式。
但与固定抵押权相比，浮动抵押权具有浮动抵押标的物的流动性、浮动抵押人对抵押财产享有自由处分权等特点，浮动抵押权的登记内容、事项以及登记方法和程序与固定抵押权应当有所区别。
《动产抵押登记办法》对浮动抵押权的登记没有做出特别的规定，本文拟结合动产抵押登记实践，对之作相应探讨，以求教于大家。
二、浮动抵押权登记的效力浮动抵押是指企业、个体工商户、农业生产者以其现有和将有的生产设备、原材料、半成品、产品设定抵押，抵押人在正常经营活动中可自由处分其抵押财产，在发生法定或约定事由时抵押财产得以确定，抵押权人就该确定的抵押财产优先受偿的一种特殊抵押。
由此可见，浮动抵押对抵押权人和第三人利益的保护较弱。
我国的浮动抵押权制度
我国的浮动抵押权制度作者：徐广宇来源：《商情》2011年第14期【摘要】本文以浮动抵押权的实现为中心对这一问题进行探讨。
通过对我国实现浮动抵押权的相关规定存在的缺陷进行了分析，并提出了完善的对策。
【关键词】浮动抵押权缺陷对策【Abstract】 The floating charge system based on the UK's equity, hasbeen 100 years of history. Due to its future property available mort-gages and mortgage business in the normal range, with free right of dis-position, etc., can give full play to the financing role, so the value of collateral also be utilized. This highly flexible and inclusive security system in common law countries, play a great vitality, and has refer-ence to many civil law countries. In this system, the realization of the right of the floating charge is to determine the value of the system play a central issue. Around this problem, countries have adopted different ways to regulate it. China's "Property Law" Although the introduction of a floating charge system, however, the realization of the right of the floating charge but there are important shortcomings, leading to the system difficult to play the role of its security, so this realization of the right floating charge as the center of this study the problem. Floating charge on the right of China to achieve the relevant provisions of the defects were analyzed, and the perfect response.【Key words】 floating mortgage； defects； Strategy一、浮动抵押的概念浮动抵押，英文中叫FloatingCharge，有学者将其译为“浮动担保”、“企业担保”、“浮动财产负担”、“浮动债务负担”等。
物权法创设新型浮动抵押办法
物权法创设新型浮动抵押办法【浮动抵押】物权法创设新型浮动抵押⽅式物权法规定了⼀种新型的抵押⽅式，即该第181条规定的“浮动抵押”。
依据该条，经当事⼈书⾯协议，企业、个体⼯商户、农户可以将现有的以及将有的动产抵押，债务⼈不履⾏到期债务或者发⽣当事⼈约定的实现抵押权的情形，债权⼈有权就约定实现抵押权时的动产优先受偿。
浮动抵押权(FloatingCharge)也称为“企业担保”、“浮动担保”或“浮动债务负担”，它是指抵押⼈以其现有的和将来所有的财产作为债权的担保，当债务⼈不履⾏债务时，债权⼈有权以抵押⼈尚存的财产优先受偿。
浮动抵押制度最早出现在英国法中。
在英国法上，浮动抵押就是指挥有关公司将现在以及将来的某⼀类资产的抵押给银⾏，例如，商品、存货或者应收帐款等流动资产。
在浮动抵押的抵押财产被确定(英⽂“crystallisation”，有些⼈翻译为“结晶”或“封押”)之前，公司有权照常营业并使⽤所抵押的资产。
其具有以下⼏项特征：⾸先，浮动抵押只能由注册公司提供，个⼈、独资商号和合伙商号不能提供浮动抵押;其次，总的来说，设定浮动抵押的资产是公司⽆法设定固定抵押的剩余资产部分，该部分的资产多是流动资产，有时也包括⽆形的固定资产;第三，浮动抵押是⼀种衡平法上的抵押，在封押之前浮动抵押处于“休眠(dormant)”的状态，该等抵押没有什么效应，公司可以正常营业。
第四，浮动抵押不是⼀个特定的抵押，在封押之前可以说是不完整的抵押。
第五，在浮动抵押封押之前，公司有权在正常营业情况下，出售及处理浮动抵押资产，如出售、租赁甚⾄抵押给他⼈。
第六，尽管浮动抵押已经封押，抵押⼈此后获得的财产仍然属于该抵押的范围。
最后，⼀旦公司浮动抵押的资产被封押，那么除⾮经过债权⼈即抵押权⼈的同意，否则公司就不能再处置这些资产了。
我国物权法吸收借鉴了英国法上的浮动抵押制度，并作出具有特⾊的⼀些规定。
从物权法本条来看，我国法上的浮动抵押权具有以下⼏个特点。
初探英国法中的浮动抵押制度的范围与困局
初探英国法中的浮动抵押制度的范围与困局【摘要】：^p ：英国法上的浮动抵押制度经过长期的发展，已经形成一套完整的担保制度。
但在其实际运行过程中，浮动抵押的财产范围、抵押权人的范围、设立生效模式都存在一定的争议，这也导致了现实运行中困局的产生，本文旨在初探英国法上该制度的兴革困弊，启发进一步研究。
【关键词】：^p ：浮动抵押；启发；英国法中图分类号：D913 文献标识码：A 文章编号：2095-4379-（20__）14-0212-02作者简介：张骏（1990-），江苏常州人，上海对外经贸大学国际法研究生，研究方向：国际经济法；徐梦灵（1992-），江苏常州人，上海对外经贸大学国际法研究生，研究方向：国际经济法。
一、浮动抵押财产的范围英国法上能够设立浮动抵押的财产是一步步扩充起来的。
起初，1862年，在霍罗伊德诉马绍尔案中，法院只承认旧设备以及在经营过程中可能购置的新设备才得以在其上设定浮动抵押。
随后通过个案扩充，上诉法院第一次承认了将来物抵押的效力，同时将将来物定义成“业务及由其产生的所有金钱或能够折算成金钱的财产”，特别是应收账款成为重要的浮动抵押适格财产。
自此，英国浮动抵押制度允许在包括企业一切现有的、将来的全部或者部分财产（动产、不动产等）设立担保，而不局限于生产设备、原材料、成品、半成品这四类动产。
二、浮动抵押人和浮动抵押权人的范围衡平法更注重对债权人、投资者利益的保护，因此，英国法中将浮动抵押人限定为公司，而不包括自然人、合伙等非公司形式。
相对于这些商事主体，公司特别上市公司的信息披露义务使得其财务信息更容易被获取，从而避免了欺诈以及无力清偿风险。
同时浮动抵押人也可以是债务人外的第三人。
为了鼓励商业交流，法律并没有对抵押权人做出明确的限制。
任何商主体都可以成为浮动抵押权人。
三、英国法中浮动抵押的设立与生效模式（一）浮动抵押合同生效之时浮动抵押权即生效作为担保性质物权的一种，浮动抵押权的设立也需要遵循担保物权的一般规则和原理。
浮动担保论文强制登记制度论文：浅论浮动担保制度
浮动担保论文强制登记制度论文：浅论浮动担保制度摘要：随着世界市场上竞争的日益剧烈，市场主体需要一种更加高效的融资担保手段来丰富现有的融资市场，而发源于英国的浮动抵押作为一种新的融资手段迅速受到了世界各国的青睐。
我国2007年颁布的《物权法》也引入了浮动抵押制度，希望通过一种新的机制给企业发展带来新的机遇同时也存在着风险。
本文从我国物权法下确定的浮动抵押制度的主体、客体、登记问题和权利顺位问题提出了一些改善的建议。
关键词：浮动担保风险强制登记制度物权法一、引言浮动担保(floating charges)，又称浮动抵押(floating mortgage)，是指借款人以其全部财产或某类财产向贷款人提供保证，于约定事件发生时，担保标的物的价值才能确定的法律形式。
在国际借贷法律实践中，这种担保方式一般不被政府或国际金融组织所采用，但在国际商贷特别是项目融资中当事人时有采用。
学者在论及浮动担保时，较为常见的有以下几种定义：1、浮动抵押，是指企业以其现有的和将来取得的全部资产为债权人的利益而设定的一种担保物权。
2、企业担保权，是指就企业的全体财产享有优先于其他债权人先行获得清偿的权利。
3、浮动抵押是对现属于营业中的企业的总括财产上设定的担保。
4、浮动担保，是指债务人(主要是公司)与债权人(通常为银行)达成协议，债务人以其现存及将来取得的全部财产作为债的担保，当债务人不履行债务时，债权人得就债务人不履行债务时拥有的全部财产的变卖价款优先受偿的法律制度。
二、浮动担保的优缺点（一）浮动担保的优点具体而言，浮动担保主要有以下几个方面的优越性：1、赋予了担保人极大的自由，促进了资金融通。
2、可以充分发挥企业作为一个整体的担保价值。
3、设定手续较为简便，费用较低，易于操作。
（二）浮动担保的缺点（风险）具体来说有如下几种风险，第一，浮动抵押效力弱容易与一般担保产生冲突，浮动抵押设立后在抵押财产确定前如浮动抵押与其他固定担保或无担保的债权并存其优先受偿权能够得到多大程度上的保障并不确定。
FloatingCharge——浮动抵押
Floating Charge
作者： 鲍为民[1]
作者机构： [1]清华大学法学院，北京100084
出版物刊名： 河北法学
页码： 41-44页
主题词： 浮动抵押;企业担保;财团抵押;英美法系;大陆法系;抵押权人
摘要：'Floating Charge'来源于英美法系,它将担保设立在公司的全部财产之上(该担保甚至可及于公司未来之财产),在结晶前公司对财产享有处分权.通过介绍Floating Charge的创立和发展变化,从设定和实施两个方面详细考察了该制度的具体内涵.最后通过和大陆法系财团抵押制度的对比,提出应在我国引进浮动抵押,完善企业担保制度.。
论英国判例法对浮动担保发展贡献
论英国判例法对浮动担保开展的奉献X冬根交通大学凯原法学院教授关键词: 判例法/浮动担保/衡平容提要: 浮动担保是判例法所创设的担保物权制度。
在英国，法官在法律原那么和制度的形成和开展中起着重要的作用。
英国法官所享有的法律解释权，为浮动担保在英国开展奠定了法律根底，法官以衡平准那么和衡平权使浮动担保制度在英国法上得以确立，并以进化论法律观对判例进展巧妙解释，推动了浮动担保法律制度系统化。
在这个过程中，法官运用归纳方法让浮动担保的概念轮廓逐渐清晰，使浮动担保的法律制度、规那么和理论逐渐形成和完善。
浮动担保(floating charge)是判例法所创设的担保物权制度。
判例法是与成文法相对应的一个概念，在英国法律制度的开展过程中，判例法起到了重要作用。
判例在各个国家和各个时代都受到重视，但是将判例作为法律体系根底的主要是以英国为典型的普通法国家。
我们在研究浮动担保法律制度过程中，必须从判例法入手，才能从本质上理解和认识浮动担保法律制度。
判例法是在社会实践中逐渐形成并开展起来的法律文化和法律传统。
根据社会法学理论，如果我们不考虑人类社会生活的实际情势，就不能理解法律，法官应对形成和影响法律的社会因素和经济因素有充分的认识。
美国最著名法官卡多佐(Benjamin N.Cardozo)强调司法实践必须与社会现实相适应。
(注：[美]卡多佐著：?法律的成长法律科学的悖论?，中国法制2002年10月版，第34页。
卡多佐的这些法律思想集中表达在其以下几部著作：The Nature of the Judicial Process(New Haven 1921),The Growth of the Law(New Haven 1924),The Paradoxes of Legal Science(NewYork 1928)。
)而英美普通法系的判例法，正是法官面对社会经济生活而逐渐形成和开展起来的法律原那么何体系。
判例法在具体审判过程中具有一定的灵活性，使得英美法系法官享有一定的自由裁量权，根据遵循先例原那么，使具有相似性质的案件具有法律上的可预见性;而在没有先例可循的场合，面对社会的新问题，可以通过判例创造新的原那么。
- 1、下载文档前请自行甄别文档内容的完整性，平台不提供额外的编辑、内容补充、找答案等附加服务。
- 2、"仅部分预览"的文档,不可在线预览部分如存在完整性等问题,可反馈申请退款(可完整预览的文档不适用该条件!)。
- 3、如文档侵犯您的权益，请联系客服反馈,我们会尽快为您处理(人工客服工作时间：9:00-18:30)。
British floating mortgage system researchReagan BeckerPerfection of securities systems is very important in each legal system because security is the oil and engine of the development of economy and there is a close relationship between them. Although the law of security has been passed in our country, there remains many problems such as simplicity of the types and defects of each kind of security which cannot meet the needs of raising money for enterprises. There are five kinds of security devices, namely guarantee, mortgage, pledge, lien and deposit. As to guarantee, creditors such as banks do rarely employ it for it is weakness as a result of a security by credit. As to mortgage, it is void if not be registered so the ambit of invalidity of security is increased and the parties do not like to use it. Moreover, the application of mortgage is largely reduced by that future assets do not be included in its subject matter. In addition, the use and flew of assets is greatly effected by the permission of creditor to dispose the assets. As to pledge, the efficiency of assets is limited by the possession of pledgee and that the pledgor has not right to dispose the assets. As to lien, it only applies to a few cases so it is not a typical security. As to deposit, it is not related to raise money. So it is very crucial to do some research on other legal systems. The floating charge called one of the most subtle creations of equity is a good subject for research to scholars of continental law and it is a common way for enterprises of the U.K. to borrow money. The floating charge can be created in all current and future assets of the enterprises to secure the debenture. The floating charge meets very well the needs of creditors and debtors because it ensures the needs of security of creditors and it entitles the right to debtors to deal with the assets of security. Where the provisions provided in the debenture have been breached, the creditor can appoint receiver to execute the security.As to the definition, there are three methods for judges to define the floating charge, including method of description, method of comparison and method of requirements. Macnaghten L.J said: a floating charge, on the other hand, is ambulatory and shifting in its nature, hovering over and so to speak floating with the property which it is intended to affect until some event occurs or some act is done which cause it to settle and fasten on the subject of the charge within its reach and grasp. Buckley L.J said: a floating security is not a future security; it is a present security which presently affects all the assets of the company expressed to be includedin itwa floating security is not a specific mortgage of the assets, plus a license to the mortgagor to dispose of them in the comprised in the securityw Romer L.J said: if a charge has the three characteristics that I am about to mention it is a floating charge. If it is a charge on a class of assets of a company present and future; if that class is one which, in the ordinary course of the business of the company, would be changing from time to time; and if you find that by the charge it is contemplated that, until some further step is taken by or behalf of those interested in the charge, the company may carry on its business in the ordinary way as far as concerns the particular class of assets I am dealing with. Although the floating charge has many advantages, for example, to meet the needs of chargee and chargor, to raise money, to decrease the limitation of improving efficiency of economy caused by using security and to rescue the company, its strength is challenged by some scholars. As to the genesis of the floating charge, it is a creation of the lawyers and the parties who want to borrow money as a result of the lack of adequate types of security for them to employ. The security in future assets created by the lawyers cannot be admitted by the common law, however, with the intervention of equity, together with the admission of some companies incorporated by parliament law to enjoy established by overcoming some theory difficulties. Comparing with the ordinary charges, the holder of the floating charge has right to deal with the assets subjected to of the floating charge in the ordinary course of business. What are the reasons of the right is very important to the theoretical basis. Throughout the cases concerning floating charges have run the threads of two different theories about their nature. The older theory, which can conveniently be called the "licence" theory, explains the company's power to act as the charge gives the chargor a licence to do so. The newer theory, called "the mortgage of future assets" theory, explains the company's power to deal with its assets by the fact that the charge does not attach specifically to any of its assets until some kind of security alike to the floating charge, the floating charge is finally crystallisation. Finally, although the special role in the development of economy, with the admission of the fixed charge on the book debts in 1970s and the advent of the culture of company rescue, some scholars has been challenged the value of the floating charge and they take the view that the floating charge should be abolished. Some scholars, however, suggest that the floating charge is historicheritage of the legal system of U.K., so it should be kept and could not be denied except reasonable reasons.The floating charge is often created for a company to raise money by debentures which are usually standard and should be registered in company registry within 21 days after creation. Now, a large number of creditors try to create fixed security on book debts which are usually subject matter of the floating charge as a result of different order of satisfaction of debts between the fixed charge and the floating charge. The fixed charge has priority to the preferential debts but the floating charge has not, so he intends to create fixed charge on book debts. However, for the benefit of unsecured creditors, the liquidator always persuade the courts to hold that the perported fixed charge is the floating charge. So many disputes arise.Without registration, the function of the floating charge cannot be worked well as it is most important part of the floating charge. According to companies act 1985(the registration part of Companies Act 1989 does not take into effect), the company registry, a department of the government is responsible for registration of the floating charge in U.K. The company has obligation to register security. It should afford security to be registered within 21 days from its creation. The registrar of companies will issue a certificate of which shows the completion of registration after checking. Besides registration of company registry, it is also needed to register in company. It is void against the administrator or the liquidator or any creditors in the insolvency or winding-up proceeding. If the conditions are satisfied the court almost will permit registration that does not register within the period unless the liquidation or administration has been begun or immediately begun. However, there is often a proviso, that is, the interests of intervention creditors cannot be damaged. The validity of registration in England and Welsh is very special as it is not requirements for against or for perfection(it is a requirement of perfection in Scotland). The floating charge is still valid between the parties without registration within 21 days after creation, although sanctions will be applied. The floating charge also can be valid against certain class of people, such as charges who have not registered their security and purchasers who is not in the ordinary course of business; however, it is void against receivers or liquidators or creditors. Even registered within 21 days, the floating charge cannot be against the subsequent fixed charges except they actually know the negative pledge clauses provided in the debenture. The purchasers in the ordinary course of business are not bound by the registration whether it is registered in 21 days. So registration is not a requirement of against or perfection, however, the floating charge if duly registered is valid against more persons. As to the validity ofrelied upon registration, Companies Act 1985 entitles the third parties relied upon the registration much more confidence than that of Companies Act 1989 because the latter has abolished the conclusive validity of the certificate of registration. There are many problems about registration systems of U.K., such as compartmentalization, complicated proceedings, blind period of visibility and irrelevancy between the time of registration and the priority, as a result, the scholars call on to reform the registration systems and there are three reports written by Lord Crowther, A.L.Diamond and company law review steering group in which the notice filing system is put forward to replace the old system.In respect of the priority between the competing interests, there are four rules established at common law, namely nemo dat quod non habet, legal interest acquired for value and without notice overrides prior equitable interest, a mortgagee may in certain conditions tack further advances for which be will rank in priority to a subsequent mortgagee and priority rules may be varied by agreement. The rules at common law are changed by legislation or cannot work as its original function as a result of the coming of positive law in which registration can give constructive notice to the subsequent charges who can argue that they do not know the prior security. The outcome of a priority dispute concerning registrable interests depends very largely on the particular type of registration system that is applicable, coupled with the overriding effect of s.395 of the Companies Act 1985 where the charge is given by a company and falls within the list set out in s.396 and the company later goes into liquidation or administration. The ranking of a floating charge in relation to subsequent interests arising prior to the crystallization of the charge partly on the type of interest in question and partly on whether the floating charge contains restrictions on dealings of which the subsequent claimant has notice.Crystallization is a bridge of conversion from the floating charge to the fixed charge. After crystallization, a floating charge becomes attached to the specific assets and the current assets and assets acquired after crystallization are the subjects of the floating charge. Crystallising events fall broadly into four groups. First, there are events denoting the cessation of trading by the company as a going concern. Secondly, there is intervention by the debenture holder to enforce his security which deprives the company of control of the charged assets and thus terminates its authority to deal with them free from the security interest. Thirdly, there are other acts or events specified in the debenture as causing the charge to crystallize. Fourthly, in the case of agriculturalcharges granted by a farmer the Agricultural Credits Act 1928 contains specific provisions for crystallization. As to the validity of automatic crystallization clauses, although the automatic crystallization clauses is valid between the holder of the floating charge and the company, because of absence of notice, they does not necessarily entitle the holder the priority over the subsequent creditors. Much of the argument directed against the validity of the automatic crystallization clause fails to separate the issue of attachment and priority. It is assumed that to give effect to the wishes of the parties as to the events that are cause the security interest to attach will as a necessary consequence result in the crystallized charge having priority over a charge with relations between the charge and third parties. But this is a mistake. It must restrict the crystallization clauses to major events that if happened could bring the management to end. Whilst for minor events the creditors can intervene or possession or appoint receivers. Or the court will doubt what is the true the intention of the parties where the parties do not take steps if the crystallization happened. If the parties want more flexibility, they can achieve that by part crystallization.Apart from powers given by law which is helpful to manage or investigate affairs of company, administrative receiver who takes control on the whole or substantially whole assets of company has comprehensive rights in which taking control assets of company, continuation of trade and disposals and reorganizations are the most ones. The duties of administrative receiver derive from equity. Equity has recognized duties of good faith and (on occasion) duties of care for the receiver and sometime the duty has been equated and expressed in terms of the tort of negligence. The administrator is a person appointed by the court in the administration and under the order of administration he has right to manage company affairs, business and assets. The administrator who enjoys a number of distinct capacities such as office of the court, officer of company, agent of company, fiduciary, office-holder is empowered to do all such things as may be necessary for the management of the affairs, business and property of the company. Besides with the same powers as those of the administrative receiver, the administrator is empowered other rights and duties that they are possessed only by him, for example, he has the right to appoint and replace the directors, the right to summon members and creditors and the right to dispose assets free from charge. In the exercise of his powers he is to be deemed to be acting as agent of the company, so a person dealing with him in good faith and for value is not concerned to inquire whether the administrator is acting within hispowers.The development of the floating charge in Japan is limited. Although in Germany the floating charge do not introduce, the same effects of the floating charge can be achieve by different securities. In America, there is a system whose function is same as the floating charge. The English-speaking jurisdictions were compelled to receive the floating charge by colonization. The introduction of the floating charge into the Scotland legal system will conflict with its private law because of the tradition of continental law which is quite different from the English law. The main problems are how to coordinate the floating charge with the present registration system, property law ideas and so on.From: Legal Research英国浮动抵押制度的研究里根·贝克尔信用担保是经济发展的动力和经济增长的发动机，担保与经济的增长和经济活动之促进密切相关，故各国法制十分重视担保制度的建设。