On The Issues Of Hypothec In The Real Estate Market

The real estate market involves many people's interests which will give rise to the disturbance of the society if they are not well settled because these people relating interests, lay a different claim. The thesis is going to discuss the interests protection and the interests balance among the contractor, the buyer, the bank, the creditor and the like by virtue of hypothecation when the commodity house is in the process of being built and sold in advance, overpassing the item approving, the land bidding, the house removing, the prospecting, the devising and so on of the construction project.There are totally five chapters in this thesis.Chapter One makes a contrast of the effect between the hypothec regulated by law and the common hypothec based on the analysis of the 286th item in the Contract Law. The writer of the thesis holds that there is room to improve the judicial explanation, [2006] 16, and that the hypothec regulated by law is the highest effective, considering the review of the equal repayment at the same time, and that the hypothec regulated by law should be registered before it takes into effect.Chapter Two concerns the consumer's claim of creditor's rights who has afforded the commodity house or partly paid for it is prior to the legal principles of the hypothec regulated by law. The writer of the thesis believes that one cannot enjoy the protection of the judicial explanation, [2002] 16, if he is not a consumer, and that the advance notice of the registration institution should be established inorder to fix the consumer's identity and prevent the conspiracy between the constructor and the fake consumer from violating the contractor's interests.Chapter Three reviews the hypothecation of the right of the land use and the house project which is under construction. The writer of the thesis is going to discuss whether the project under construction can be hypothecated, whether the project to be constructed belongs to the scope of the contract, and how to show it to the public. On this basis, the writer thinks that a positive attitude towards the phenomenon of double hypothecation of the right of the land use owing to the hypothecation of the right of the land use and the project under construction.In Chapter Four, the writer of this thesis is going to discuss three questions in the analysis of hypothec and the buyer's rights. The first question is that the buyer do not afford the commodity house by means of mortgage because the realization of the hypothec of the project under construction will render the loss of the right of expectation of the buyer's ownership. In order to avoid the rights conflict, the writer holds that firstly the money obtained by selling the commodity house in advance should be supervised so as to get rid of hypothec; secondly, the hypothec and the right of expectation of the buyer's ownership towards the commodity house should try to be balanced, so the hypothec should be entrusted with tracing power, and the buyer should be protected by the right flaw guarantee institution according to the judicial explanation, the 2nd item in the 9th list, [2003]7, which reveals the spirit of law behind. The second question is that the buyer take the measure of mortgage to buy the commodity house while the constructor is unable to pay off the debts and the buyer cannot pay the due money. And then the bank will fall in the dilemma that its interests will be violated by the twice mortgage of the project under construction. So the writer holds the view that if the constructor has mortgaged the project under construction, the same bank should not offer mortgage for the buyer inorder to avoid the financial risk. The third question is the conflict between the mortgage after the commodity house has been sold in advance and the right of the buyer. The writer believes that the announce notice of the register institution should be identified as soon as possible in Civil Law in order to prevent the constructor from deliberately breaking the contract and strengthen the protection of the buyer.In Chapter Fi...