Contract For Advance Sales Of Commercial Housing And Mortgage Of Advance Sales Of Commercial Housing

It has been stipulated by regulations of Chinese local governments in different levels that in economic intercourse, a mortgage guarantee for financing is able to be set on the option of the buyers, who are entitled by the contract for advance sales of commercial housing. The official judicial interpretation of Chinese Highest Court not only confirms this, but also stipulates that the mortgage register of the advance sales of the commercial housing is the necessary essential for such guarantee. In fact, this option is a kind of expective right obtained by buyer through such contract. In another word, this option is obligee's right of claim against obligor's performance of credit. With the effect of the public summons and public trust, the expective right of the registered commercial housing got some special effect comparing to the common jus in personam, namely, be provided with the character of jus in re and exclusiveness which belongs to the right in rem only. The expective right of the registered commercial housing gradually grows into the object of the guarantee contract and provides mortgage guarantee for the realization of the credit. The mortgage register of the advance sales of commercial housing, as a kind of real estate register, also ensures the effect and thepriority of the right of mortgage.In this article, the author tries to settle the correlative problem from eight different viewpoints, as follows.1) the character of the rights belong to the buyer of the contract for advance sales of commercial housing;2) the registered advance sales contract;3) the object of the mortgage contract of the advance sales of commercial housing;4) the premises of the mortgage contract of the advance sales of commercial housing;5) the effect of the mortgage register of the advance sales of commercial housing;6) the mode of the mortgage register of the advance sales of commercial housing;7) the fault and the relative compensation on mortgage register of the advance sales of commercial housing;8) the suggestion on consummating the system of mortgage register of the advance sales of commercial housing.The purpose of mortgage register of the advance sales of commercial housing is to exhibit the settlement, modification and termination of the mortgage about such commercial housing to the public, in order to make sure the effect about such alteration and maintain the fairness and order ofthe market. The mortgage register of the advance sales of commercial housing pinpoints every element about the mortgage relationship, on the other hand, the legal effect of such mortgage entitled by related legislation pinpoint the relationship between the right to mortgage recorded by the liber and the realistic right to mortgage. The character of such mortgage register is a kind of preparatory register in the field of real estate register.Chinese mortgage register of advance sales of commercial housing based on the right-in-rem-alteration legislative mode should be regarded as a kind of eclecticism legislative mode. As a legislative tradition of Civil Law countries, the principles on the real estate register are stipulated in the Draft of Chinese Law of Things; furthermore the material provisions are based upon the principles mentioned before. The related fault in the mortgage register of the advance sales of commercial housing, such as improper register, oblivious register, pertains to functionary tort of relative register department. According to Chinese State Compensation Law and Chinese Administrative Procedure Law, the real estate register department is reliable for such tort.By analysis about the contract for advance sales of commercial housing and the mortgage register of the advance sales of commercial housing, the author tries to give some suggestions on consummating the system of mortgage register of the advance sales of commercial housing,as follows. 1) Persist in the coherence between the subject of house property and the subject of right of exploitation of the land; 2) Prevent different per...