Jurisprudence. Civil law.
PhD in law Lorenc
D.V., Vologodskaya V.G.
South Ural State
University, Russia
Mortgage in Germany and
Russia
The mortgage appeared in the Roman Empire
as a type of the real right where the pawn remained in possession of the debtor.
Signs and types of traditional mortgage
have changed in modern civil law.
There
takes place a grand reform of the civil legislation nowdays in Russia. We
suggest to analyse the Russian-German experience in area of realization of the
real rights.
In
the Draft of the Civil Code of the Russian Federation [1] the problem of the
legal nature of pledge is solved, the mortgage becomes the real right (chapter
20.4). In the German civil code [2] the
mortgage isn't a type of pledge, and looks like limited real right to the land
plot along with an easement (§ 1113). Pledge extends only on a personal estate
(§ 1204 BGB).
In
Russia the subject of mortgage should be immovable property, share in the
property right to real estate, emhyteusis and building leasehold. Unlike
Germany in Russia suggest to forbid a mortgage of future things (rights). In
Germany the mortgage spread on the land plot. Unlike Russia buildings and
constructions can't be a subject of the German mortgage as are essential part
of the earth.
There
are two types of a mortgage in Russia:
accessory and independent. At an
accessory mortgage in the contract the being, the size and dates of performance
of the main obligation is defined. At an independent mortgage the contract
contains the limit sum which the pledgee, and also pledge term can receive. The
independent mortgage can be established by thing encumbrance without
instructions of the face of the pledgee (surprisingly, but in Germany the pledger
can write down a mortgage even on his own name). At an independent mortgage the
pledgee will be able independently to choose the obligation of the debtor. Any
subjects can participate in an accessory mortgage. At an independent mortgage
the pledgee is the credit organization, and the commercial organization can be
the pledger. The maximum term of an independent mortgage in Russia will continue 30 years.
In
the German right is reflected the specific meaning of an independent mortgage.
There was created an abstract form of pledge in a semblance of "a land
debt" (Grundschuld) for protection of the conscientious purchaser of
mortgage paper against invalidity of the main obligation. This independent real
for receiving of a certain amount of money from real estate without the indication of circumstances in the
land book, so-called "the real bill" [4]. If payments are periodic,
Grundschuld turns into "a rent debt" (Rentenschuld). These forms are
connected in one concept "Gült" (the income from the land plot)
In Switzerland.
The
rent debt has external similarity to the right of real deliveries which appears
in Russia (chapter 20.6 of the Draft of the Civil Code of the Russian
Federation). Before revolution such right was called by "patrimonial
deliveries". However the German land (rent) debt belongs to a type of pledge
of real estate together with a mortgage [2; 3]. The right of real deliveries
isn't pledge, but to this right rules of a mortgage about the collecting
address on property if the owner of real estate doesn't fulfill the obligations
can be applied. The owner is obliged to give out to the creditor goods, money,
work or service, except using the burdened real estate. Real deliveries can be
established during the citizen’s life or for the term of no more than 100
years, and stop in case of death of the owner of the right or on prescription
if he doesn't demand delivery within 5 years or when the real estate perishes.
In Germany the similar right is called real encumbrance (Reallasten) on which
the person can derive periodical benefits, but only from the land plot (§ 1105
BGB). Unlike a monetary rent debt benefit at real encumbrance can be any, and
real encumbrance isn't pledge, norms are in other section BGB [2; 4].
In
Russia for a turn of a ipoteka the mortgage security is used: at an accessory
mortgage – a nominal documentary security; at an independent mortgage – an
order security the rights on which passes by means of a transfer inscription
(endorsement). In Germany allocate
two types of a mortgage: documentary (Briefhypothek) and book (Buchhypothek).
The documentary mortgage is established after transfer by the owner of the land
plot of the mortgage certificate to the creditor. The court of the first
instance which keeps the land book in the district can grant the certificate. The
book mortgage arises when the mortgage certificate isn't granted and record
about a mortgage exists only in the land book [3].
So,
as a result of reform of the real right in Russia there is an independent
mortgage and real deliveries in which the most effective designs of the German
civil right are reflected. It has to promote development of a civilized civil
turn.
Literature:
1. Проект №
47538-6 Федерального закона «О внесении изменений в части первую,
вторую, третью и четвертую Гражданского кодекса Российской Федерации, а также в
отдельные законодательные акты Российской федерации» (далее Проект изменений ГК
РФ) //
http://consultant.ru/
2. Bürgerliches Gesetzbuch, BGB (German civil code, 1896). // http://www.gesetze-im-internet.de/bgb/
3. Основные институты
гражданского права зарубежных стран / Отв. ред. В.В. Залесский. М., 2009. С.
552 – 589.
4. Покровский И.А. Основные
проблемы гражданского права. М., 1998 // Классика российского права // http://civil.consultant.ru/elib/