The Risk Analysis And Legal Protection Of Bank's Creditor's Rights On Mortgage Loan With Personal Residence Being Built

With the deepening of national housing reform and rapid development of real estate market, the mortgage loan with personal residence gains a great progress .With this progress, a lot of risks come into being. Among them, the risk of mortgage loan with personal residence being built becomes increasingly evident. This essay focuses on discoursing upon the risk analysis and legal protection of bank's creditor's rights on mortgage loan with personal residence being built .We believe it has theoretic value and great meaning to the practice of reforming banks' risk prevention and creditor's rights protection.This article uses four chapters to systematically dicuss this problem mentioned above. Chapter one mainly discusses the definition of mortgage loan with personal residence being built by law. It begins with the origin of the word, and then indicates its definition difference in China and the Common Law countries. During the course of borrowing this concept, we have made a great revision to it in order to make it suited to Chinese legal system. We also deeply analyze its legal characteristics and relationship. At last, we hold that it shall be considered as mortgage from the perspective of guaranty law. Yet, from the view of financing, it shall be considered as composite legal relationship which is characterized as based on the selling of real estate, on the conditon of bank's loan, and taking mortgage and surety as means to provide protection. We also think it should be included in thecontract law.Chapter two makes a deep analysis on the interests and rights enjoyed by banks and their risks on mortgage loan with personal residence being built. At first, by analyzing, we think that bank has common creditor's right, mortgage right and guaranteed creditor's right. Based on the analyzing of the relationship among the three rights and interests, we also think that bank's creditor's right is the principal right and basic right. After we analyze the present conditions of risks, we get the general risk modes and make them be classified. At last, we indicate that as for legal risks, we should reinforce our legal measures, as for nature and market risks, we should perfect social safegard system such as insurance system.Chapter three mainly discourses on how to reinforce legal protection measures based on the risk analysis of chapter two. This article provides corresponding legal protection measures to the real estate developer's cheat, the dispute in the purchase and sale contracts and the house buyer's breach of contract. What's more, we also make a monographic study on the contradictions and disputes in the law application.Chapter four points it out that as for nature and business risks, the insurance system is the key to prevent the risks in mortgage loan with personal residence being built. It also provides answers from the view of jurisprudence to all kinds of problems happening in the practice of insurance application. What's more, this article also holds that the insurance required by banks does not belong to coercive insurance, nor does it violate the principal of voluntariness. The bank should enter into the contract as the first insured. At last, we analyze bank's duty of notice in the insurance practice, and argue that we shall borrow the developed countries' experience on the insurance system, expand the insurance coverage so make it better to exert its function and power of risk transfer.