In our work and life, we are easily confused when dealing with mortgage and pledge. In law, specific items can only be pledged or mortgaged, so it is particularly important to understand the difference between them. So what is the difference between collateral and pledge in terms of legal provisions? I sorted out the relevant information about this problem.
First, the difference between pledge and collateral
The fundamental difference between pledge and collateral lies in whether to transfer the possession of collateral.
Mortgage is not carried out in the form of transferring the possession of collateral, and the mortgagor is still responsible for the custody of collateral; Pledge has changed the form of possession of pledged property, and the pledgee has the responsibility to keep the pledged property.
Generally speaking, the mortgagor shall be responsible for the damage or value reduction of the collateral, and the pledgee shall be responsible for the damage or value reduction of the collateral.
Creditors have no direct right to dispose of the collateral, and need to negotiate with the mortgagor through prosecution or complete the disposal of the collateral after a court decision; The pledgee may dispose of the pledged property beyond the time stipulated in the contract without consultation or court judgment. Pledged loans are the same as mortgage loans.
Second, the definition of collateral
Collateral refers to the collateral that the debtor (mortgagor) transfers to the creditor (mortgagee) to guarantee the performance of an obligation. It can be tangible property or registered intangible property, such as superficies, government bonds and life insurance. In some countries, it is divided into chattel mortgage and real estate mortgage. The former is movable property, including negotiable instruments and ownership certificates. The latter such as land and buildings. China does not distinguish between mortgage and pledge. According to the provisions of the Civil Code (202 1 to 1 implementation), any property provided as a guarantee, whether it is real estate, movable property or securities, is called collateral whether it is transferred or not.
Third, collateral can be used as collateral.
Refers to property that has been used as collateral. According to the provisions of China's Civil Code,
Article 395 The following property that the debtor or a third party has the right to dispose of may be mortgaged:
(a) buildings and other land attachments;
(2) The right to use construction land;
(3) the right to use the sea area;
(4) Production equipment, raw materials, semi-finished products and products;
(5) Buildings, ships and aircraft under construction;
(6) means of transportation;
(seven) other property not prohibited by laws and administrative regulations.
The mortgagor may mortgage the property listed in the preceding paragraph together.
Four. Non-mortgaged property
Article 399 of the Civil Code The following property shall not be mortgaged:
(1) Land ownership;
(two) the right to use collectively owned land such as homestead, private plots and private hills, except those that can be mortgaged according to law;
(3) Educational facilities, medical and health facilities and other public welfare facilities of non-profit legal persons established for the purpose of public welfare, such as schools, kindergartens and medical institutions;
(4) Property whose ownership and use right are unknown or controversial;
(5) Property that has been sealed up, detained or supervised according to law;
(6) Other properties that may not be mortgaged according to laws and administrative regulations.
Definition of pledge of verb (abbreviation of verb)
Pledge: During the pledge period, the party accepting the pledge has the right to dispose of the pledged property, such as selling it, as long as the assets equivalent to the pledged property are returned to the pledgee after the pledge is completed.
Something that can be used as collateral
Six, can be used as collateral, mainly in the following categories:
1, chattel pledge. Chattel pledge mainly includes: easy to realize, easy to preserve and keep, the ownership that the pledgor can transfer or transfer or the right to dispose of according to law;
2. Money mortgage. It is a specific currency mortgage in the form of deposit.
3. pledge of rights. Rights pledge mainly includes the following categories:
(1) Bills of exchange, promissory notes and certificates of deposit.
(2) Treasury bonds, financial bonds and corporate bonds.
(3) shares and stocks.
(4) Specific life insurance policies with cash value that can be pledged according to law.
(five) the right to exclusive use of trademarks, patent rights and property rights in copyright that can be transferred according to law.
(6) Other rights that can be pledged according to law.
The above is about the difference between collateral and pledge. In terms of regulations, the difference mainly lies in whether to transfer the possession of property and the way of disposal. Collateral includes movable property and immovable property, while pledge is movable property and right. We can judge whether it is necessary to apply for pledge or mortgage according to the difference between the two.