Research On The Mortgage Of Commercial Housing's Advance Booking

With the acceleration of China's reform and opening up, establishment of system of land use by compensation, our country's real estate business attains a rapid development since the early years of 1990's and consequently a new term, which is called commercial housing, has emerged. Commercial housing is often classified into spot-transacting house and advance-booking house that is usually called "selling story flower". The advance booking originated from Hong Kong Li Xing Estate Company in 1954. Because the exploitation of real estate needs large capital and long turnover period, the advance booking is gradually taken as an effective method for raising funds by real estate exploiter. From coastal cities to throughout the country, except very few provinces, all real estate markets have the greatest esteem for it at present. The mortgage of advance booking of commercial housing enables the mortgagee to purchase the house by paying only a few of first installments. Meanwhile, it opens up a new credit channel for bank and promotes the advance booking of commercial housing. At present, in respect of the practice of industry and commerce, department regulations, local legislation and judicial interpretation, China basically defines the mortgage of advance booking of commercial housing as real estate charge, literally as charge and not mentioned mortgage. Thus, it makes the law be out of line with reality in practice. From surveying the advance-booking of our country's commercial housing, analyzing the mortgage in Hong Kong's law, researching the present situation and perspective of our country's mortgage practice, studying specially the discrimination between mortgage and charge as well as pledge, the author deduces that guarantee object of advance-booking of commercial housing is the reversionary right, and the advance-booking of commercial housing should be classified into the cessionary guarantee system in expectation of benefit to the legislation of our country's property right law.At present, it is Mr. Liang Huixing, an authority on the civil law, that first advocates the mortgage of commercial housing's advance booking should belisted into the cessionary guarantee system. However, the academic circle has been disputing over it. Those who agree with Mr. Liang Huixing think it mostly from the angle of necessity of setting up the cessionary guarantee system. As to this article, the author deduces it mainly from the studies for mortgage in application and in theory, and from the need for rule of law in practice.