Probe Into Several Legal Issues On Commercial House Mortgage

Great attention is paid to commercial house mortgagethe because of its special system arrangement.Undoubtedly its legal character is the most fundmental issue.Given that ,the study firstly probes into its character ;then inquires the insurance issues of the mortgage in commercial house; lastly, put the field of vision on its securitization of the mortgage of commercial house for the purpose of inquiry of legal issues on it.The study consists of four chapters :the first chapter is to attach importance to introducing general theory about mortgage ,analyzing the system of mortgage in Anglo-American law, HongKong, China law and mainland China law by comparision; then draws a conclusion that mortgage in mainland China is different from that in the other two kinds of mortgage .Mortgage takes a special look in Chinese special legal culture.The second chapter is to pay attention to the legal character of commercial house mortgage ,focuses focal point on the new definition of its character by analysing different views on mortgage 's legal character .Then demonstrates that commercial house mortgage is a model of security which is different from charge,impawn and transferring guarantee.Confronted with the lack of the written law ,the author suggests that we should accept this new kind of security interest by judicial interpretation or relevant examples,gradually sum it up in practice ,and ascend it to the legal height.At the same time we can consider amending assurancelaw so that mortgage is stipulated as agreed interest,which can become a new kind of security interest paralleling to charge and impawn.The third chapter is to attach importance to insurance issues in the commercial house mortgage . It makes a particular analysis about the insurance problems which emerge in the merchandise building's mortgage ; introduces advanced practical experience from that of foreign commercial house ; gives the following suggestions to establish the insurance system of commercial house mortgage in our country:firstly the government should take an active part in insurance business in commercial house mortgage and give play to the role of government intervention; secondly, we should give play to the role of the commercial insurance company and exploit some new-brand insurance products. It is the emphasis of this chapter.The author proposes that we should exploit the following kinds of insurance: 1.credit insurance and assurance insurance of the merchandise building; 2.interets rates insurance of the mortgage ;3.breach insurance of the merchandise building's mortgage; 4.product liability insurance of the merchandise building;5.1ife insurance of loan of the commercial house mortgage;6.ownership insurance of real estate .The author makes a rational analysis of the causes of exploiting these kinds of insurance from the jurisprudent angle. Thirdly ,we should learn advanced experience from the investment insurance of the foreign insurance company.The fourth chapter is to elaborate the securitization of commercial house mortgage .The voice of securitization of the commercial house mortgage is higher and higher ,so the study introduces the definition .character and operation flow of securitization of the commercial house mortgage.lt also demonstrates the necessity of commercial house mortgage ,soon afterwards ,puts forward some problems that we will faced with when we carry out securitization ,namely,l.Transfer of creditor's right of loan contract between mortgage(bank) and mortgage(borrower),in terms of this problem,we think it possible to transfer from jurisprudent analysis ;2.We suggest that loan isolation of mortgage bank in the commercial house mortgage and bankruptcy alienation should be solved by adopting pattern of trust .And it demonstrates that the loan isolation and bankruptcy alienation will be availableaccording to trust principle ,and the author also puts forward some views to deal with them.