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动产抵押制度最大的弊病就是抵押权设定在动产之上。传统的抵押权一般是设定在不动产之上,不动产实行登记的公示方式,传统抵押权亦采登记的公示方式,并不会在实践中造成冲突;而动产抵押是把抵押权设定在动产之上,因为动产抵押不需要移转标的物的占有,可能就会损害抵押权人和第三人的利益,有违交易安全,造成这种困局的根本原因就是动产抵押缺乏一个很好的明确的公示方式。为破解该难题,在理论上和立法实践中很多国家和地区都在努力,有采取登记主义的,也有采取辅助公示的。笔者认为动产抵押公示难题不是无解的,只要通过完善公示方式、改进公示技术、利用现代先进技术手段,完全是可以解决这一问题,使动产抵押发挥更好的制度功能。
The biggest drawback of the movable property mortgage system is that the mortgage right is set above movable property. The traditional mortgage is generally set on the real estate, the real estate registration of the publicity, the traditional mortgage also adopted the public notice of registration, and will not cause conflicts in practice; and the real estate mortgage is the mortgage set in the movable Because the movable property collateral does not need to transfer possession of the subject matter may damage the interests of the mortgagee and a third party, contrary to transaction security, the root cause of this dilemma is the lack of a good chattel mortgage Clear publicity. In order to solve this difficult problem, many countries and regions in both theory and practice have been trying their best to adopt registrationism and assisted in publicity. I think the chattel mortgage publicity problem is not without a solution, as long as by improving the publicity methods, improve the public technology, the use of modern advanced technology means is entirely possible to solve this problem, so that chattel mortgage to play a better institutional function.