نوع مقاله : مقاله علمی - پژوهشی
استادیار حقوق خصوصی دانشکدۀ حقوق، علوم سیاسی و تاریخ دانشگاه یزد، یزد، ایران.
عنوان مقاله [English]
One of the basic principles in the field of property rights is publicity. The publicity principle implies the awareness of third parties of real rights and justifies the absolute effect (erga omens’) of these rights against them, which has been neglected in the Iranian legal system. In this article, questions about the concept, foundations, function and finally its tools in the field of collateralization of assets and the need to transfer of possession of mortgaged property in the Iranian legal system have been answered,with of descriptive-analytical method and desk research study of Western legal systems. In the end, it was concluded that the publicity principle is an essential component of the collateralization of assets system; the basis of awareness and creating transparency and, consequently, preventing the appearance of false wealth justifies it. It also has several functions such as increasing access to secured credit, preventing fraud and manipulation of transaction time, reducing transaction costs, and so on. Transfer of possession of collateral is not a matter, but is tool of publicity that it is also ineffective in provide the foundations. This is also true in the Iranian legal system and about the need to transfer of possession in the mortgage contract. Registration of security rights is a good tool for publicity and it should be possible to replace transfer of possession. Therefore, a distinction should be made between collateral with publicity and without it and Attention Of transfer of possession must be set aside.