抵押合同与抵押权

抵押合同虽被规定在担保法之中 ,但这并不妨碍统一合同法对它的适用性。书面形式是抵押合同的成立生效要件 ,抵押人、抵押权人、以自己的财产设定抵押权的第三人在主债权合同及抵押合同中皆处于不同的利益循环之中。抵押合同的标的为抵押权 ,而非抵押物本身。我国民法应采用且已采用了物权行为理论 ,据此理论 ,抵押合同应为物权合同 ,而非债权合同

The Mortgage Contract And the Mortgage Rights

Thoug the montgate contract is regulated in the Law of Real Rights,the Law of Contract is still applicable to it.A mortgage contract should be concluded in writing. Mortgagor, mortgagee and the third party who set up the right of mortgage on his own property are all in different circulation of interest. The object of mortgage property itself,but the right of mortgage. Our civil law should and have already adopted the theory of real right contract,according to this theory,a mortgage contract is a real right contract,not a creditor's rights contract.