Hello, the answer to the above question is as follows. Legally, pledge and mortgage belong to the category of security interest, but there are some differences between them in terms of concept, nature of rights, subject matter, right setting, priority of repayment, etc. Today's edition introduces the difference between pledge guarantee and mortgage guarantee.
1、 The difference between the concepts of mortgage and pledge Article 33 of the Guarantee Law of the People's Republic of China stipulates that the mortgage referred to in this law means that the debtor or a third party does not transfer the possession of the property listed in Article 34 of this law and uses the property as the guarantee for the creditor's rights. When the debtor fails to perform his obligations, the creditor shall have the right to convert the property into money in accordance with the provisions of this Law or have priority in compensation from the proceeds of auction or sale of the property. The debtor or the third party mentioned in the preceding paragraph is the mortgagor, the creditor is the mortgagee, and the property that provides security is the mortgaged property. Article 63 of the Guarantee Law of the People's Republic of China stipulates that the pledge of movable property referred to in this Law means that the debtor or a third party transfers its movable property to the creditor for possession and uses it as security for creditor's rights. When the debtor fails to perform his obligations, the creditor has the right to convert the chattel into money according to the provisions of this Law or to have priority in compensation from the proceeds of auction or sale of the chattel. The debtor or the third party mentioned in the preceding paragraph is the pledger, the creditor is the pledgee, and the transferred movable property is the pledged property. That is, the biggest difference between the two is that the mortgage does not transfer the collateral, but the pledge must transfer the possession of the collateral.
2、 The different natures of mortgage and pledge rights include chattel mortgage, real estate mortgage and right mortgage. Limited by the object of right mortgage, the nature of this right is the right of use attached to land ownership, which is a right on real estate. The pledge is to transfer the movable property to the creditor for possession, and to maintain the possession as a guarantee for the priority of repayment. The right to set the pledge cannot conflict with the nature of the pledge. Pledge is a security interest set on movable property, but cannot be set on immovable property, so the right to set pledge is often limited to the right on movable property.
3、 The subject matter of mortgage and pledge is different
1. The subject matter of the mortgage is immovable property, usufruct of immovable property and movable property.
2. The subject matter of the pledge is movable property and other property rights except the usufruct of immovable property, including creditor's rights, equity, intellectual property rights and other property rights.
3. The subject matter of the two kinds of security interests, mortgage and pledge, intersects in the movable property. The security interest established in the movable property is the mortgage or pledge, which is distinguished by whether the creditor occupies the subject matter.
4、 In addition to signing a mortgage contract, the establishment of mortgage is in principle conditional on mortgage registration. The establishment of the mortgage is not conditional on the delivery of the collateral. The maintenance of the mortgage is not conditional on the mortgagee's possession of the mortgaged property. The registered mortgage is maintained based on the existence of mortgage registration records. Cancellation of registration means that the registered mortgage no longer exists. The establishment and maintenance of pledge is different from mortgage. In addition to signing the pledge contract, the pledgor shall deliver the pledged property to the creditor for possession in accordance with the pledge contract. A pledge right cannot be established if the possession of the pledged property is transferred to the creditor only by concluding a pledge contract and not in accordance with the pledge contract. The continuation of the possession of the pledged property by the pledgee is also the condition for maintaining the pledge. The loss of the possession of the pledged property by the pledgee causes the destruction of the pledge.
5、 As security interests, priority mortgage and pledge have equal legal status. When the two coexist in the same property, there is a question of priority or equality. The first paragraph of Article 79 of the interpretation of several issues in the Guarantee Law stipulates that "when the legally registered mortgage and pledge of the same property coexist, the mortgagee has priority over the pledgee to be repaid." That is, the legally registered mortgage and pledge, regardless of the time sequence of their emergence, have priority over the pledgee to be repaid. The reason why the law makes this provision is to highlight the effectiveness of mortgage registration publicity. Because the law stipulates that the establishment of the pledge is based on the possession of the pledged property by the pledgee, while the mortgage is a guarantee method that does not transfer the possession. If the order of repayment is determined only by the time of establishment, the mortgagee will be in a very disadvantageous position and the credibility of mortgage registration will be affected.
