On Separate Mortgage System Of Real Estate

The term"mortgaged together"prescribed in Article 182 of the Real Right Law of the People's Republic of China on housing and land refers to legal fictitious co-mortgage relations that forms in independent mortgage of housing and land. Repetitive mortgage relation is formed when the housing and land are mortgaged to different mortgagees. Both kinds of mortgage right shall be effective, and in accordance with mortgage registration sequence of the housing and land, mortgagees may convert the mortgaged property into money or seek payments from the money generated from the auction or sale of the mortgaged property. However, the fundamental solution for separate mortgage phenomenon of housing and land is to create a unified real estate registration system. In this paper, it is to discuss from the following four aspects:The first chapter is mainly to explain separate mortgage of real estate and conduct theoretical analysis of its effectiveness. Starting from the concept of housing and land, the basic principles of real property right and special rules relating to real estate mortgage, the relations between land use right and housing ownership and the forms of mortgage are analyzed, as the basis for the following discussion.The second chapter is comparative study, mainly analyzing the evolution and criticism of the legislative pattern of real estate mortgage both at home and abroad. The evolution of legislative pattern abroad mainly consists of mortgaging land and building together as well as separate mortgage of land and building. The pattern that the land ownership includes the building ownership can be exemplified in Roman law which is abided by in German law, denying the independence of the building and making it a part of the land ownership. Hence, land mortgage includes the buildings on the land. Influenced by the Roman law, French law also adopts the pattern when dealing with the relations between land ownership and building ownership. The legislative pattern of Japan and China Taiwan differentiates from that of Roman in that it deals with the land ownership and building ownership separately. In Japan law, the land ownership, surface rights and building ownership are independent rights, so they can be mortgaged separately. When the land alone is auctioned, the owner of the house owns the legal surface right simultaneously. The separation of the land and building gives more benefits to the owner of the land and protects it more flexibly. In China Taiwan, the applicable scope of the legal surface right expands further.Evolution of the enactment of legislation in China is by listing planning relating to mortgage of housing and land to confirm the rule of integration of housing and land.The third chapter is to conduct analysis on Article 182 of the Real Right Law of the People's Republic of China. First of all, analysis of the legal nature of"considered as mortgaged together"; secondly, revelation of the legal effect of separate mortgage of housing and land; thirdly, institutional perfection of separate mortgage of housing and land, viz. to improve the registration system and develop a unified registration law; finally, analysis of some special ways of real estate mortgage, such as mortgage of the newly built housing within the mortgaged real estate, land use right transfer, and real estate of partitioned ownership of housing areas, etc.The last part is about the conclusion. Based on the principle of confirming that co-mortgage of land use right and housing ownership has formed in China, and summation of separate co-mortgage relations formed in separate mortgage of land use right and housing ownership, and in combination with the problems existing in current registration system, it is to recommend that a unified real estate registration system shall be established.