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《物权法》的出台修正了《民通意见》、《担保法》及《担保法解释》对于抵押期间抵押人转让抵押财产的规定,但因《物权法》刚出台不久、物权法解释又尚未颁布,对《物权法》条文的理解与适用就产生了诸多分歧,尤其是对《物权法》第191条的规定。本文从对该条的法律规范属性的判定入手,得出“抵押权人的同意”并非判断抵押物转让有效的标准,进而对于未经抵押权人同意、擅自转让抵押物之转让的效力作出认定。
The “Property Law” amended the provisions of “MinTong Opinion”, “Guarantee Law” and “Guarantee Law Interpretation” for the transfer of mortgaged property by the mortgagor during the mortgage period. However, as the Property Law has just been promulgated and the interpretation of the Property Law has not yet been promulgated, There are many differences between the understanding and application of the provisions of the Property Law, especially the provisions of Article 191 of the Property Law. This article begins with the judgment of the legal norms of the article and concludes that “the consent of the mortgagee ” is not a valid criterion for judging the assignment of the collateral, and thus the effectiveness of the transfer of the collateral without the consent of the mortgagee Make a decision.