Research on Issues in the Realization of Floating Mortgage
DOI:
https://doi.org/10.63313/LH.9044Keywords:
Floating Mortgage, Realization of Mortgage, Property Scope, General Description, Property FixationAbstract
This paper examines key issues in the realization of floating mortgage under Chinese civil and commercial law. Through an empirical analysis of 72 typical judicial decisions, three core practical problems are identified: 1) judicial dilemmas concerning the scope of fructus within the mortgaged property; 2) ambiguous legal boundaries for the exercise of the right of intervention by the mortgagee as a property‑fixation event; and 3) inconsistent judicial standards for the “reasonable identification” of general descriptions of mortgaged assets. The study argues that the scope of floating mortgaged property should be moderately expanded by extending the concept of “proceeds” to include fruits and intangible assets through purposive interpretation. Regarding property fixation, the mortgagee’s right of intervention should be recognized as a legitimate “other circumstance seriously affecting the realization of the claim” only when it constitutes a necessary measure to preserve the mortgaged property. Concerning general descriptions, a dual standard is proposed: a strict general reasonable identification standard and a flexible special reasonable identification standard allowing judicial discretion based on trade customs, party autonomy, and legislative spirit. The findings provide a systematic framework for improving the legal application of floating mortgage realization.
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