Authors | Deng Huifen and Wang Kunyu, Corporate Legal Affairs Center
Under China’s current valid legal system, whether the amendment registration of a pledge over movable property affects the priority of the pledge right is a complex issue that involves both property law and security law. According to the Civil Code and its related judicial interpretations, amendments to the registration of pledges over movable property primarily involve adjustments to the amount and the duration.
Therefore, does such a change registration affect the priority of the mortgage right? This is a matter of particular concern to financial leasing institutions and warrants further examination.
1.
The legal framework for pledges of movable property
Article 411 of the Civil Code indicates that a mortgage is one of the important means of securing the enforcement of creditor’s rights, and a pledge of movable property refers to a situation where the pledgor uses its movable property as the subject matter of the pledge to secure the realization of the creditor’s rights. After the establishment of a mortgage, the mortgagor is not required to transfer possession of the mortgaged property. When exercising its rights, the mortgagee has the priority right to be repaid from the proceeds of the liquidation of the mortgaged property.
To ensure the realization of the right of mortgage, the law provides for a registration system for pledges of movable property. Article 403 of the Civil Code provides that where movable property is mortgaged, the mortgage right shall be established upon the entry into force of the mortgage contract; however, such mortgage right shall not be enforceable against a bona fide third party unless it has been registered. A contract for the pledge of movable property shall be in writing; however, the establishment of a pledge right over movable property becomes enforceable against third parties only upon registration.
This means that once a security interest in movable property is registered, its priority of payment is determined at the time of registration.
2.
The impact of registration of changes on the priority of a mortgage
Movable property mortgages frequently arise in the course of financial leasing activities. After the mortgage registration for the movable property has been completed, the mortgagor and the mortgagee may, due to their business needs, amend the amount of the secured claim or the duration of the guarantee. Does such an amendment affect the priority of the mortgage right?
1.
Legal Basis and Practice
In accordance with the provisions of the Civil Code concerning security interests, after a mortgage is registered, if there are any changes to the mortgaged amount or the duration of the guarantee, the mortgagee or the mortgagor may apply to the registration authority for an amendment to the registration. This type of registration amendment constitutes a change in the content of the mortgage right, rather than the re-establishment of the mortgage right.
The amendment registration of a pledge over movable property merely modifies certain aspects of the original registration and does not alter the date on which the pledge right was initially established. The priority of a pledge over movable property is determined by the time of registration, rather than by specific changes to the registered content; therefore, such changes generally do not affect the priority of the pledge right. In other words, the modified mortgage right continues to enjoy the priority ranking determined by the original registration date.
2.
Impact of the amount change
If the amendment involves an increase in the amount of the mortgage, although the amount recorded after the amendment exceeds the original mortgage amount, pursuant to the chronological order of registration, the increased portion shall also enjoy the same priority as the original mortgage right. Therefore, regardless of any changes in the amount, the priority of the mortgage right in respect of payment shall, in principle, remain unchanged.
After the registration of the change, the priority of the original mortgage right shall still be determined by the date of its initial registration. From another perspective, the underlying financing legal relationship under the mortgage contract arises at the time of the initial financing; any increase or decrease in the amount does not alter the date on which that initial financing legal relationship was established.
3.
Change of the Guarantee Period
An amendment to the guarantee period typically entails either an extension or a shortening of the duration of the mortgage right. According to the law, after a registration of change is effected, the term of validity of the mortgage right may be adjusted; however, this does not constitute a re-establishment of the mortgage right. Therefore, the priority ranking of the mortgage right following the registration of change should remain unaffected. However, whether the extension of the guarantee period requires the consent of the mortgagee is, in practice, a false issue, because it is usually the mortgagee who seeks to amend the registration in order to better safeguard or realize its mortgage rights. Therefore, the mortgagee should be aware of any changes to the guarantee period, and there is no need to provide separate notice or obtain its consent.
3.
Changes in priority rights under special circumstances
Although, in principle, the law guarantees that the priority of a mortgage right shall not be affected by amendment registration, in practical application, the following special circumstances still require attention:
1.
Intervention of third-party rights
If, during the period of registration for the change, a third party has already established and registered a new security interest in the movable property, the newly added portion of the security interest may give rise to a priority dispute with the third party’s security interest, thereby affecting the validity of the newly created portion.
2.
Malicious modification
If the mortgagee or mortgagor maliciously alters the registration in a manner that infringes upon the interests of a third party, the third party is entitled to raise an objection through legal procedures, such as filing a declaratory action or asserting the invalidity of the contract, and to safeguard its own rights and interests by legal means.
4.
Summary
Under the current law, any registration of changes to the amount of the mortgage or the duration of the security interest following the registration of a pledge over movable property, in principle, does not affect the priority of the mortgage right. After the registration of the change, the priority ranking of the mortgage right shall still be determined by the date of the original registration.
However, in certain circumstances—particularly when third-party interests are involved—the legality and legitimacy of the registration amendment may have a certain impact on priority rights. Therefore, when carrying out registration of changes, the mortgagee and the mortgagor must strictly comply with legal provisions to ensure that the priority of the mortgage right is not affected.
The purpose of registering a pledge over movable property is to protect the pledgee against third parties who acquire possession of the property in good faith. The registration date and the date of any amendment to the registration merely serve as records of when the registration was effected and do not affect the substantive terms of the underlying contract, such as the amount of the secured claim or the duration of the security interest.
lawyer Introduction
Attorney Deng Huifen
Senior Equity Partner at
Head of the Corporate Restructuring, Mergers & Acquisitions, and Liquidation Department at
’s Legal Affairs Center
Member of the First Financial and Institutional Committee of the Shenzhen Bankruptcy Administrators Association
Member of the 11th Business Innovation and Development Committee of the Shenzhen Lawyers Association
Member of the Eleventh Legal Professional Committee on Non-Performing Asset Disposal of the Shenzhen Lawyers Association
Outstanding Party Member Lawyer of the Shenzhen Lawyers Industry for 2016
Outstanding Young Lawyer of the Shenzhen Lawyers Association, 2022
Outstanding Committee Member of the Shenzhen Lawyers Association Professional Committees, 2022
Professional qualification
Attorney, M&A Transaction Professional, Fund Industry Qualification
Major/Specialization
Investment and M&A, private equity funds, civil and commercial dispute resolution
Attorney Wang Kunyu
Lawyer at
Previously worked at a leading company in the supply chain industry as Head of Risk Control and Legal Affairs.
Major/Specialization
Supply chain legal services; civil and commercial dispute resolution
Center Overview
Corporate Legal Affairs Center
The Corporate Legal Affairs Center is one of the specialized practice centers within the Zhiheng system. The Center upholds Zhiheng’s development philosophy of “building the firm through professionalism and strengthening it through strength,” and has brought together seasoned professionals from the Zhiheng network who possess profound expertise and extensive practical experience in corporate legal matters.
The Center comprises five specialized practice departments: Shareholder Rights, Corporate Governance, Commercial Dispute Resolution, Corporate Compliance, and Corporate Restructuring, Mergers & Acquisitions, and Liquidation. It is dedicated to deepening its understanding and application of corporate laws and regulations, integrating the theory and practice of corporate legal matters, fulfilling its professional research responsibilities and mission, innovating legal service offerings, achieving visualization and standardization of legal services, and building a world-class corporate legal team. Through these efforts, the Center aims to provide clients with high-quality, efficient corporate legal services, thereby fully demonstrating and enhancing Zhiheng’s professional expertise and brand influence in the field of corporate legal services.
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Laws and Regulations
Laws and Regulations | The Supreme People’s Court, the Supreme People’s Procuratorate, and the Ministry of Public Security have jointly issued the “Guiding Opinions on Lawfully Punishing Illegal and Criminal Acts of Cyber Violence.”
Laws and Regulations | Administrative Reconsideration Law of the People's Republic of China
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Zhiheng · Introduction
